South Pacific: NZYQ Case Exposes Ethical and Legal Fault Lines in Australia’s Offshore Detention Policy
(c) HADI ZAHER
Nauru remains at the epicentre of Oceania’s debate around human rights and the impacts of offshore processing and detention. Scholars argue that the NZYQ case set a precedent for refugees and asylum seekers across the Asia-Pacific. The case has highlighted the potential for governments to bypass international human rights obligations by deporting individuals to third-party states, raising ethical and legal questions about state responsibility. Critics warn that this approach undermines fundamental protections for asylum seekers and could encourage other nations to follow suit, eroding established human rights norms. The individual concerns of stateless individuals remain uncertain when deported to Nauru. These individuals often lack legal representation, pathways to citizenship and access to long-term resettlement solutions.
A central concern is Australia’s strategy of externalising asylum processing by outsourcing it to a poorer third-party nation, offering financial aid and incentives in exchange for detaining members of the NZYQ group. This approach positions Nauru as the focal point of Australia's offshore detention policy, raising serious ethical, legal, and geopolitical implications.
The High Court Decision
The High Court Decision
In 2023, the Australian High Court ruled that the ongoing indefinite detention of individuals awaiting visa status was unconstitutional. This legal precedent and decision by the High Court limits executive power and demonstrates upholding the Australian constitution. The ruling forced the Government to release over 200 people who had been placed in ongoing detention into the community. Authorities and senior figures in the Government were concerned that the majority of cases previously had visas cancelled by prior governments due to character grounds as well as some individuals having committed crimes in their country of origin.
One of the three detainees being sent to Nauru in the NZYQ Resettlement scheme is a Rohingya Minority from the Rakhine State in Myanmar. This minority group has long been persecuted by Myanmar authorities with military action referred to as “ethnic cleansing” and the use of lawfare to recognise the Rohingya as citizens of Myanmar. As such, there is a dilemma referred to as ‘non-refoulement’ over the handling of stateless individuals with legal uncertainties regarding citizenship, legal representation and long-term resettlement.
Resettlement in Nauru Deal
The announcement of the resettlement deal between Australia and Nauru by the Australian Government on February 16th 2025 seeks to ‘externalise’ the issue of three NZYQ members. Home Affairs Minister, Tony Burke announced the three members including a member of the Rohingya minority would be granted a 30-year visa by the Nauru Government.
Since the ruling in 2023, The Australian Government has sought to diplomatically work with smaller states in the region, as third-party players in dealing with the ruling. Moreover, the High Court understands there is no standard practice for resettling stateless people. The politicisation of the NZYQ ruling around concerns of homeland security following the release of some members convicted of murder, rape and other severe crimes into the community. However, the Australian Government has significant policing resources to monitor members of the NZYQ cohort that may pose a threat to the community. Senior Immigration Official, Abul Rizvi argued that "Allegedly they are too dangerous for our society. But is Nauru in a better place to manage them than us?
Ethical and Human Rights Concerns
The United Nations High Commissioner for Refugees referred to these developments as the ‘externalisation’ of the treatment of refugees. This has raised ethical and human rights concerns regarding the indefinite detention of the NZYQ cohort prior to the Australian High Court’s ruling. Furthermore, the accessibility to housing, jobs and legal representation remains uncertain. Minister Burke guaranteed “Where they will be it's a relatively short walk to a bus that will allow them to go to the community and they will be allowed to work in the community". However, details about the circumstances and support available to the three individuals upon their arrival in Nauru remain limited.
The High Commissioner for Refugees released a statement referring to indefinite ‘warehousing’ of asylum-seekers in isolated places, exposing them to indirect refoulement and other dangers”. Australia’s strict and at times controversial border policy under Operation Sovereign Border has been viewed by like-minded countries as ‘successful’ in dealing with unprecedented mass migration movements across the world. The UK under the Sunak Government attempted a similar model with the UK-Rwanda deal.
In international relations, nation-states often navigate complex and conflicting domestic and international responsibilities—particularly when it comes to the politically charged and volatile issue of refugees and asylum seekers.
Australia’s Response
The financial costs of the deal between Australia and Nauru remain unclear. Minister Burke stated, “Yes, there's a cost in reaching an arrangement with third countries, [but] there is also a cost in the high level of monitoring … that happens when these individuals are in the community here in Australia”. The political perspectives in Australia showcase a broad division between the homeland security challenges, politicization of refugees and attempts to uphold human rights and dignity of individuals apart from NZYQ. Previous Home Affairs Minister and current Opposition Leader, Peter Dutton would “consider” the arrangements the Government has outlined with the externalisation of NZYQ through the Nauru scheme. Shadow Home Affairs Minister, James Pattison criticised the handling of the issue by the government, advocating that “to send only three of [the cohort] overseas is hardly going to protect the community”. Greens Senator David Shoebridge criticized the policy in its entirety arguing it is “divisive and dehumanising”. Furthermore, the deal with Nauru has been accused of blatant ‘bribery’, with Senator Shoebridge criticising that “no other country has decided to bribe other countries to take people without any regard for human rights”.
Nauru, the third-smallest economy in the Pacific—contributing less than 0.3% of the region’s GDP—is heavily reliant on external funding. While the details of Australia’s deal to resettle three members of the NZYQ group in Nauru remain unclear, the offer was accepted by Nauruan officials. With a federal election expected between now and May, homeland security has become a highly contested political issue across all major parties, alongside growing concerns over cost-of-living pressures among Australians.
