Twenty-five of the 153 people affected by the high court’s ruling on indefinite detention had already been released into community detention by ministerial discretion, including one murderer and one convicted of “attempt or solicit murder”.
Court documents in the legal challenge against ankle bracelets and curfews reveal new details about the background of all 153 non-citizens, including that the number who were already living in the community is higher than first thought.
The agreed facts in the case reveal that on 8 November 2023, 25 people had previously received residence determinations, allowing them to live at a specified place without restrictions later imposed on them like curfews.
In November, Guardian Australia revealed that of the 93 people initially affected by the high court ruling, 21 were already living in the community, including 16 let out the by Albanese government and five apparently by the former Coalition government.
The solicitor general, Stephen Donaghue, told the high court that the “best assessment” of the public servant who compiled these figures was that the 16 had been released by the “current minister”, Andrew Giles.
Unlike the recent controversy over the Administrative Appeals Tribunal restoring visas to non-citizens, releases under section 197AB of the Migration Act may only be made through a personal decision by the minister, after satisfaction they were in the public interest.
A document in the agreed facts supplied by the defendants, immigration minister Andrew Giles and the commonwealth, reveals that one person – identified only by the number 56 as other identifiers were redacted – had been convicted of murder and sentenced to eight years’ imprisonment in 2005.
After serving a criminal sentence, the person was released from immigration detention to community detention through a residence determination.
One person – identified as 19 – had been convicted of “attempt or solicit murder” in 2011 and sentenced to 11 years in prison, and was later released from immigration detention into community detention.
Those released into community detention included: three people convicted of offences in the category “domestic violence, stalking or breach of domestic violence order”; six people convicted of offences in the category “intentional or reckless injury or assault occasioning actual bodily harm”; and three convicted of “armed robbery, aggravated burglary, robbery or burglary”.
Several of the 25 had no criminal conviction; many were convicted of fraud, “other non-violent offences”, or lower level offences, such as common assaults.
Despite at least 16 people having been released by Labor, the home affairs minister, Clare O’Neil, has said on several occasions since November “if it were up to [her]” the entire NZYQ cohort would “still be in detention” or would never have been released.
On Friday, Guardian Australia contacted the immigration minister, Andrew Giles, and O’Neil to ask which government and minister released the 25 people on residence determinations.
Asked to rule out that the Albanese government had released those convicted of serious offences, a spokesperson said: “The government does not comment on ongoing court matters.”
“The commonwealth is arguing strongly that electronic monitoring and curfews are necessary for community safety,” the spokesperson said.
On Wednesday, Australian Border Force officials revealed at Senate estimates at least two murderers or attempted murderers and 26 sex offenders released as a result of the high court decision were not required to wear an electronic ankle monitor or observe a curfew.
The ABF commissioner, Michael Outram, defended the regime by saying there was a “big difference between some murders and other murders”.
Outram noted that offences “could be years ago”, as well as differences in the “rehabilitation” or prospects of rehabilitation of the person, and the potential risk of reoffending.
The Albanese government has been under sustained criticism from the Coalition over both its handling of those released as a result of the NZYQ high court ruling and an unrelated ministerial direction on visa cancellation which defines a non-citizen’s ties to Australia as a “primary consideration”.
Labor has vowed to replace direction 99 with an order that community safety is paramount and outweighs a non-citizen’s ties to Australia.
On Thursday, Giles revealed that drones were used to assist with surveillance of those released as a result of the NZYQ ruling. The home affairs department later clarified this was done to confirm the location of their accommodation and identify nearby facilities that may be relevant to their visa conditions.
In November, O’Neil sought to explain the government’s difficulty responding to the high court decision by saying it was “a little bit unusual” for the court to make a decision without explaining its reasons for decision.
But a submission to Giles, released under freedom of information, shows that on 6 November, one day before the two-day hearing, he was warned if NZYQ won the case, the court “may make orders that he be released immediately from immigration detention”.
O’Neil has said the government was advised it would probably win the case or be able to deport NZYQ, but the department rejected an FoI claim for the relevant “operational advice” by claiming she had relied on verbal advice only.
The 6 November submission is at best equivocal on the point, suggesting there was “sufficient viability” in the option of deporting NZYQ to the US to argue the point in court, but describing the resettlement only as “possible”.
It said that “legal risks for the commonwealth” were addressed in an email to “both portfolio ministers’ offices (dated 22 August 2023)”.
