Unused laws to re-detain former immigration detainees released under the High Court’s NZYQ ruling should be rewritten, the Coalition has said, after the government conceded it had not been able to use them.
The federal government rushed “preventative detention” laws through in late 2023 with the Coalition’s support, after a High Court ruling caused the release of dozens of people with serious criminal convictions who had served their time but remained in immigration detention.
The laws enabled the government to apply to have high-risk members of roughly 300 people released from the NZYQ ruling placed back in detention, if they were deemed to pose a threat to community safety.
After an ex-immigration detainee allegedly murdered a 62-year-old man at Footscray mall while on bail and wearing an ankle monitor, scrutiny has again returned to how the government is handling the NZYQ cohort.
Shadow Immigration Minister Paul Scarr said the government had failed to use powers it had been given 16 months ago.
“We were told that the work was underway, evidence was being collected … and then we have the shocking admission 16 months later that it wasn’t practical to make applications,” Senator Scarr said.
“We should be looking at how to amend the legislation.”
‘Difficult’ legal thresholds
The Coalition supported the government’s 2023 Community Safety Orders, and moved its own amendments to that legislation.
Senator Scarr acknowledged that, and did not offer proposals for how the scheme could be rewritten.
But he said until the weekend, the government had been assuring it was in the process of applying to re-detain the cohort.
Home Affairs Minister Tony Burke said on Sunday that the legislation had set a high bar for people to be placed back in detention and none of the cohort had yet met it.
“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,” he said.
The minister said he had not given up on that effort, but his preference now was to see the group deported.
The government is wary of a further loss in the courts that could again restrict its legislative ability — the ruling in NZYQ that overturned two decades of precedent was that indefinite ongoing detention was punitive in nature, and therefore unlawful.
There is a risk for government that detaining people who have not committed an offence, or applying overly harsh punishments to offences such as a breach of curfew or monitoring conditions, could also be thrown out in a High Court challenge.
The Law Council of Australia said at the time of the laws being passed that preventative detention should only be allowed in exceptional circumstances and imposed after a fair hearing by a court.
