April 1, 2025
Tuesday 1 April 2025
Geoff Chambers and Rhiannon Down
The Australian
Anthony Albanese’s mandatory minimum sentencing laws threatening 12 months’ jail for hundreds of dangerous NZYQ non-citizens who breach visa conditions have been “bungled”, with a loophole allowing offenders to remain free.
Department of Home Affairs officials have confirmed that laws passed in November 2023 do not require judges to impose one-year jail sentences and acknowledged the parliament would need to amend laws to “remove the judicial flexibility”.
The admission, which continues Labor’s botched handling of the 300-strong NZYQ cohort, emerged after Victorian police officers shot Sudanese-born former immigration detainee Masi Ayiik after he allegedly ran at them with a metal pole in Melbourne’s southeast.
The 33-year-old, who was in the community on five counts of bail, allegedly breached his visa conditions in December and January after being released following the 2023 NZYQ High Court ruling. He had previously been facing deportation for serious criminal offences.
The alleged incident involving Mr Ayiik follows claims of other violent crimes by NZYQ non-citizens, including the alleged robbery and bashing of 73-year-old Perth grandmother and cancer patient Ninette Simons by a freed immigration detainee.
In a Senate estimates hearing last Thursday, held in the dying hours of the 47th parliament, Department of Home Affairs secretary Stephanie Foster revealed the government “didn’t anticipate” the risks associated with the laws. Since the release of the 300 detainees, including murderers, pedophiles and rapists, more than a third have reoffended.
Under questioning from opposition home affairs spokesman James Paterson, who raised the case of a South Sudan-born man who pleaded guilty to 11 visa breaches but spent only one month in custody before being released on good behaviour, department deputy secretary Clare Sharp revealed the “judicial flexibility” loophole.
Ms Sharp told Senator Paterson that “the judge still retains discretion to suspend sentencing, and it sounds as though that is what occurred in this case for some portion of the mandatory minimum”.
“So a further amendment would be required if the parliament wanted to remove that judicial flexibility in relation to these provisions,” Ms Sharp said. Asked if it was within the parliament’s power to do that, Ms Sharp said “it would be available”.
With other former immigration detainees who breached visa conditions not required to serve any prison time, Senator Paterson on Monday committed a Dutton government to amending the laws as a priority if elected on May 3. The High Court will hand down another judgment on Wednesday that could become another test case for the government and see more detainees walk free by expanding the NZYQ cohort to include foreigners being held in immigration detention while their visa applications are being processed. The judgment involves two foreign drug offenders who argue they were unlawfully held in immigration detention and believe the NZYQ ruling should apply to them.
Senator Paterson said Labor’s “never-ending NZYQ debacle has once again left community safety at risk from hardcore criminals who have been released from immigration detention under this government’s watch”.
“The parliament’s intention was clear: dangerous non-citizens who breach our laws must be incarcerated for the full duration of the mandatory jail terms to protect the community, not be slapped on the wrist with a good behaviour bond or suspended sentence,” the Coalition campaign spokesman said.
“The Albanese government should have had legislation ready to go on day one of the High Court’s NZYQ ruling, but instead it panicked and rushed laws through parliament littered with drafting errors – including on mandatory jail terms – that have left Australians dangerously exposed to hardcore criminals.”
Government figures reveal 104 of the 300 dangerous NZYQ non-citizens have reoffended, including 21 who have breached visa conditions and committed a state or territory offence, and 83 who have been charged with state and territory criminal offences.
Asked whether Labor would commit to fixing the loophole and whether the government considered amending the laws, Home Affairs Minister Tony Burke said he was “putting all my efforts into getting these individuals out of the country all together”.
Last month, Mr Burke announced that “Nauru will resettle members of the NZYQ cohort as part of a new arrangement with the Australian government”. Three people were taken back into immigration detention pending their removal from Australia.
Mr Burke did not comment on the Department of Home Affairs leaving vacant its second highest-ranking official role after former associate secretary Emma Cassar – who oversaw immigration operations – quietly exited her job weeks out from the election.
Senator Paterson said “the government has spent $22m without lodging a single application for a preventative detention order … this compounds the government’s drafting errors that saw electronic monitoring and visa curfew requirements thrown out by the High Court last year”.
Under the NZYQ ruling, the two drug offenders were not immediately freed because their visa applications were still pending. Ahead of Wednesday’s judgment, the government has argued that the NZYQ ruling should not be extended. “The applicants seek an unprincipled and radical extension of NZYQ into a period before the power or duty to remove has arisen,” the government’s submission says.
The Polish and Vietnamese men, known as CZA19 and DBD24, filed Federal Court challenges arguing their detention is unlawful. The commonwealth then sought to have the legal question heard by the High Court.
CZA19, who served almost a decade behind bars except for a period when he was “at large after escaping from prison”, was released into the community on May 13. The Vietnamese man served two years in prison after he was caught loading 14kg of cannabis into his car. He was released on a protection visa on October 1.