Preventative detention laws for migrants have failed, Tony Burke concedes
Laws designed to put certain migrants behind bars if they are deemed to threaten community safety have effectively failed, the immigration minister has conceded.
The preventative detention regime was set up in 2023 after the High Court ordered the release of a man, referred to as "NZYQ", who had a criminal history and no right to remain in Australia but could not be deported to his home country.
The laws, which also enabled ankle monitoring and curfews, applied to NZYQ and about 250 others with similar circumstances, but the government was forced to rewrite them after a second High Court case affirmed it could not "punish" the cohort.
Tony Burke told Sky News this had resulted in such a high bar that nobody in the cohort could be detained under the laws.
"No-one has come close to reaching the threshold that is in that legislation," he said.
"I keep meeting with the department and keep asking, 'OK what people do we have at different thresholds that we can run a case …' I'm not giving up, I'm going to keep doing it, but I'll tell you, to be honest, I would much prefer the individuals out of the country."
The government passed another law last year allowing Australia to pay other countries to take members of the cohort, a law the High Court is now testing after the government paid Nauru to accept three of them.
Mr Burke said the government was "winning" so far and this avenue was more promising than preventative detention.
"The reality is the legal thresholds we are stuck with because of some of the decisions of the High Court are more difficult to reach than I wanted them to be … That's why we've introduced the laws for third countries," he said.
One member of the cohort, Friday Yokoju, was charged over a fatal attack in Footscray earlier this month. Mr Yokoju was charged with intentionally causing serious injury to a 62-year-old man. However, Victoria Police are weighing further charges after the man's death.
The incident sparked criticism from the Coalition's new home affairs spokesperson Andrew Hastie, who accused Mr Burke of being "passive" by failing to make any preventative detention applications.
"The reason why the parliament rushed through these preventative detention powers 18 months ago was to prevent exactly this sort of scenario where an innocent person is [allegedly] harmed by a member of this cohort," he told the ABC at the time.
"If they can't deport them, they need to exercise the powers the parliament vested in the minister to prevent this from happening."
Mr Burke said he expected Mr Yokoju would now "end up in a process where there'll be a long time in jail" if he was convicted and that he would not seek to deport him while this process was ongoing, but would prioritise others in the cohort.
"If you're on a visa you are a guest in the country, and almost everybody who is in Australia is a good guest … For people who breach that trust, we're entitled to say your visa is cancelled and it's time for you to leave."
Many in the NZYQ cohort had their visas cancelled a long time ago but they were unable to be deported for a variety of reasons.
The government has also passed a law making it an offence not to cooperate with efforts to secure deportation, which can require members of the cohort to take steps such as applying for a passport in a third country or risk jail time.
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