Preventative Detention Laws for Migrants Have Fallen Short, Burke Acknowledges
Immigration Minister Tony Burke has admitted that laws introduced to detain certain non-citizens deemed a risk to community safety have largely failed in practice.
The preventative detention regime, introduced in 2023, followed a High Court ruling that mandated the release of a man known as “NZYQ” — a non-citizen with a criminal history who could not be deported nor legally detained indefinitely. The legislation enabled the use of curfews, ankle monitors, and detention for others in similar situations — around 250 individuals — but a second High Court decision struck down aspects of the law, ruling it could not be used to “punish” this cohort.
Burke told Sky News that the threshold for detaining someone under the current legislation is so high that no applications have succeeded.
“No one has come close to reaching the threshold in the legislation,” Burke said.
“I keep asking the department who might qualify for a case… I’m not giving up, but to be honest, I’d much rather these individuals were no longer in the country.”
In response, the government passed another law last year allowing Australia to pay third countries to accept members of the group. This approach is currently being tested in the High Court, after three individuals were sent to Nauru.
Burke suggested this legal route showed more potential than preventative detention.
“We’re stuck with tough legal thresholds because of High Court decisions. That’s why we created third-country relocation laws,” he said.
Criticism from the Opposition
The government’s approach has come under fire following the alleged involvement of Friday Yokoju, a member of the NZYQ cohort, in a fatal attack in Footscray earlier this month. Initially charged with intentionally causing serious injury to a 62-year-old man, further charges are being considered after the man’s death.
The incident prompted criticism from Shadow Home Affairs Minister Andrew Hastie, who accused the government of failing to use the powers it pushed through Parliament 18 months ago.
“These laws were meant to prevent this very scenario,” Hastie told the ABC.
“If deportation isn’t possible, the minister must use the powers available to detain those who pose a risk.”
Government Focuses on Deportation and Cooperation
Burke said he expects Mr Yokoju to face a lengthy prison sentence if convicted and will not consider deportation during legal proceedings. He stressed that those who hold visas must respect the privilege of living in Australia.
“If you’re on a visa, you’re a guest,” Burke said.
“Most people do the right thing. But when someone breaks that trust, it’s fair to say their visa should be cancelled.”
Although many in the NZYQ group had their visas cancelled years ago, deportation has been impossible due to legal and diplomatic barriers. To address this, the government passed additional legislation making it a criminal offence not to cooperate with deportation efforts — such as applying for travel documents — with jail time for those who refuse.
