Australia immigration detainees preventative detention: Burke says high legal threshold may prevent jailing

Home Affairs Minister Tony Burke has conceded the incredibly high threshold on a preventative detention regime for criminal former immigration detainees means it’s possible none will ever be locked up under it.

But he says his preference is to remove them from the country as soon as possible anyway.

The minister’s comments come after Victorian police last week charged Yarraville man Lominja Friday Yokoju over a fatal assault in Melbourne.

Mr Yokoju was among the group of immigration detainees known as the NZYQ cohort released from the Yongah Hill centre in 2023 after the High Court ruled that keeping non-citizens locked up indefinitely when they couldn’t be deported was unconstitutional.

He is due to face court again in October over the alleged murder.

Mr Burke’s ministerial predecessor rushed preventative detention laws through Parliament in December 2023 to establish a regime where those in the NZYQ cohort deemed a danger to the broader community could be subject to a “community safety detention order”.

However, more than 18 months later, no such orders have been issued.

“The reality is, the legal thresholds that we are stuck with because of some decisions of the High Court are more difficult to be able to reach than I want them to be,” Mr Burke told Sky News on Sunday.

“I’ve got a lot of resources that I’ve dedicated to this. No one has come close to reaching the threshold that is in that legislation.

“So 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 altogether.”

Mr Burke passed laws last year enabling Australia to pay third countries to take non-citizens it wants to deport, where it’s not possible to return to their home country.

The first three visas under that plan are currently being challenged through the High Court.

“As they go through the High Court, we’ve been winning the (other NZYQ-related) cases, which I’ve been really happy about, which is giving me more confidence that we’re going to be able to start getting these people offshore,” Mr Burke said.

“My view is this: if you’re on a visa, you are a guest in the country. And almost everybody who is a guest in Australia is a good guest, and a whole lot of them end up calling Australia home and becoming Australian citizens, and that’s a great thing.

“But for people who breach that trust, you’re entitled as a nation to say, well, your visa is cancelled and it’s time for you to leave.”

Shadow defence minister Angus Taylor said it was “an imperative” that the Government keep dangerous people off the streets.

“The job for Tony Burke is to make sure that he is able to do that… We’ll do whatever we have to do support that, but we’ll also hold him to account on making sure he achieves that,” he said.