June 2, 2024
A former immigration detainee freed following the High Court's controversial NZYQ ruling, only to be convicted under a tough law that was meant to guarantee they would spend 12 months in prison, has escaped with a suspended sentence.
Last November, parliament passed emergency legislation in the wake of the High Court ruling which freed 153 detainees held in immigration which made it a criminal offence for them to breach any of the reporting, curfew or electronic monitoring conditions imposed by the federal government.
At the time the Immigration Minister Andrew Giles said "breaches have a mandatory minimum sentence of one year, and maximum penalty of five years imprisonment".
But despite the clear intention of the law, the first detainee convicted of breaching their visa conditions was given a 12-month sentence that was wholly suspended.
The former detainee has since been charged with a second visa breach.
The case came to light on Friday night when the Australian Federal Police appeared at a Senate Estimates hearing at which it was also revealed that since March, 40 of the 153 detainees released into the community in the wake of the High Court ruling had since been charged with a crime.
The hearing was told 36 of the detainees had been charged with state and territory crimes while 10 had been charged with Commonwealth offences relating to their visas, six of whom also have state and territory charges against them.
Of the 10 former detainees charged with Commonwealth offences, seven are currently in custody while three are in the community.
Opposition Home Affairs spokesman James Paterson, who led the questioning of the federal police at Friday's hearing, said the case showed the law was already failing.
"Labor's so-called tough visa laws have fallen at the first hurdle," he said. "A repeat visa breacher has been let off scott free despite the laws apparently including mandatory minimum sentences of at least one year.
Clare O'Neil and Andrew Giles have botched the drafting and the courts are making a mockery of their tough rhetoric."
