The revelation that seven of 149 people released from immigration detention were convicted of murder or attempted murder has reignited a political firestorm around the government’s handling of the NZYQ high court case.
The home affairs department revealed on Monday that 24 of the people released as a result of the high court’s ruling have already been charged for visa condition breaches or state offences and 36 are not required to wear ankle bracelets.
After senior Liberals plastered new statistics of the criminal records of the 149 people on social media, Anthony Albanese said the government is “preparing applications” to seek preventive re-detention of people released from immigration detention.
“We will take action for everyone who the advice suggests can be successfully detained,” Albanese told 2GB Radio.
The opposition leader, Peter Dutton, claimed they were released by “a weak prime minister and his government”.
The immigration minister, Andrew Giles, explained it had done so to comply with the high court order, as “would have been required under any government”.
On 8 November the high court ruled indefinite immigration detention is unlawful where there is “no real prospect” of it becoming practical to deport the person “in the reasonably foreseeable future”.
The decision prompted the release of 149 people, weeks of political controversy about the government’s preparedness for the decision, and emergency legislation that passed on 16 November to criminalise breach of visa conditions, including curfews and ankle bracelets.
In answers to Coalition senators tabled on Monday, the department revealed that “as of 1 February six individuals have been arrested and charged for offences against the Migration Act for breach of visa conditions”.
“Additionally, the [Australian Border Force] is aware that 18 individuals have been charged by state and territory police for state and territory offences,” the document said.
In response to Coalition questions seeking information on the offences that individuals in the cohort had been convicted of, the department reported:
72 convicted for assault and violent offending, kidnapping, armed robbery
37 for sexually based offending, including child sex offending
16 for domestic violence and stalking
13 for serious drug offending
Seven for murder and attempted murder;
Fewer than five for people smuggling, crimes of serious international concern; and
Fewer than five with “low level or no criminality”
The department revealed that as of 31 January none of the 149 individuals had been re-detained in immigration detention on the basis there is now a “real prospect” of their deportation being practical.
According to the document tabled on Monday, $13m has been spent so far responding to the high court decision, including $8.6m by the department, $3.9m by the Australian federal police and $417,000 of status resolution income support to those released.
The department revealed that Giles “was not asked to sign off on the statement of agreed facts” before it was filed in the high court on 31 May 2023. It said this was “consistent with usual litigation management practice in the department”.
The agreed facts included that “NZYQ could not be removed from Australia, nor was there a likelihood of it occurring in the reasonably foreseeable future”.
The Australian government made this concession before undertaking extensive efforts to deport the plaintiff, NZYQ, which the opposition has seized on to argue it mishandled the case.
The department’s timeline of key dates reveals that it was only on 3 November, just four days before the start of hearings in the case, that the department sent Giles and home affairs minister Clare O’Neil an “operational plan in the event of a loss”.
In a move O’Neil has described as “unusual”, the high court delivered its orders without reasons on 8 November, catching the government by surprise because internal home affairs advice suggested a result was unlikely until 2024.
According to the department, the migration amendment (bridging visa conditions) bill – which imposed the ankle bracelet and curfew conditions and introduced criminal penalties – was developed from 9 to 15 November.
The department revealed that 103 people have been subjected to the toughest visa conditions including electronic monitoring, curfew, and mandatory notification of large financial transactions and debts. A further 15 people had a “mix” of these conditions.
Some 30 people in the cohort “had none of the prescribed conditions imposed”.
In question time the Coalition spent every one of its questions on the NZYQ revelations. The shadow immigration minister, Dan Tehan, repeatedly queried why 36 people in the cohort were not required to wear ankle bracelets and whether any had committed offences.
In response, Giles cited the advice of the community protection board but declined to give details of offending, describing this as an “operational” matter.
Giles said it is proceeding with “caution” on preventive detention applications due to the “high legal threshold” to convince a court to re-detain people.
Tehan told Guardian Australia the timeline “once again proves that minister Giles was completely asleep at the wheel when it comes to this case”.
The shadow home affairs minister, James Paterson, said it was “truly shocking” it had taken the government four months to release details about those released.
In a statement on Monday, Giles said: “It was Peter Dutton who personally intervened as the then minister for immigration to allow NZYQ to stay in the country for longer – when he knew he was a paedophile.
“His personal decision meant that the convicted paedophile was allowed to remain in Australia until the day the high court made its decision.”
