Notice, nullity and no natural justice: constitutional precariousness of Section 76AAA

This article argues that recent amendments to the Migration Act 1958 (Cth) –
in particular ss 76AAA, 189, 196 and 198AHB – create an architecture that
is fundamentally incompatible with Australian administrative-law values. By
allowing a Bridging (Removal Pending) visa to cease automatically once
a non-citizen gains even conditional “permission” to enter a third country,
and by expressly excluding the rules of natural justice, s 76AAA triggers a
statutory pipeline to mandatory, potentially indefinite detention under ss 189
and 196. Section 198AHB simultaneously empowers the Commonwealth to
support opaque third-country reception arrangements with minimal scrutiny.
The article demonstrates that the scheme undermines procedural fairness,
violates the principle of legality, strains the constitutional separation of judicial
power, and positions Australia as an international outlier. It concludes with a
suite of legislative and doctrinal reforms designed to restore fairness, legality
and human dignity.