February 17, 2025
Nauru has agreed to take three out of the more than 280 foreign criminals who are part of the NZYQ cohort, with Labor scrambling to strike more deals with third-party nations after raising the white flag on putting convicted murderers, rapists and drug traffickers back behind bars in Australia.
Home Affairs Minister Tony Burke revealed on Sunday the tiny Pacific nation of fewer than 13,000 people would take three violent criminals a deal likely to be challenged in the High Court and confirmed there was little prospect of the government's preventive detention laws being successful in putting foreign criminals back in detention in Australia.
Mr Burke made the admission despite declaring soon after taking over the portfolio that he was working on "building up the cases" to use the powers to send members of the NZYQ cohort back to detention who were deemed a risk to public safety.
He signalled there were too many legal constraints in the preventative detention regime, which Labor legislated in 2023 after the High Court's ruling in the NZYQ case forced the government to release foreign criminals from indefinite detention if they had no prospect of being resettled in another country.
"The threshold in that legislation, because of other constitutional precedents, is very, very high. And while ... I've continued to be briefed and work with my department, there are no cases for preventive detention that are nearly ready to go," Mr Burke said.
"If I'd been able under that legislation to launch actions for preventive detention on a huge scale, I would have jumped at every single opportunity.
"But the best case outcome is, in fact, not detention. The best case outcome is if you shouldn't be living in Australia, you leave." While Nauru has agreed to take only just over 1 per cent of the NZYQ cohort, Mr Burke said the development was significant and it could pave the way for more foreign criminals being sent to third nations.
He said he expected the decision to be challenged in the High Court but he was confident of the commonwealth's legal position.
"Nauru had described these three visas as the first three and that's how it should be seen," Mr Burke said. He declined to outline the financial compensation Nauru had received for accepting the three violent criminals, one of who was a murderer.
He would also not give details as to why Nauru accepted these three individuals who will be given 30 year visas, accommodation and work rights over others in the NZYQ cohort.
"What distinguishes these three cases is that they are the three that Nauru have chosen to issue visas to. We need to remember Nauru is a sovereign nation," Mr Burke said.
"All three, though, are violent offenders. One is a murderer.
"Yes there's a cost in reaching arrangements with third countries. There is also a cost in the high level of monitoring ... that happens when these individuals are in the community here in Australia. There was also a cost when they were being held in detention."
Peter Dutton said the Coalition would consider supporting the deal to send some of the NZYQ cohort to Nauru.
"When we got into government, we implemented Operation Sovereign Borders, we got the children out of detention that Labor had put into detention and we stopped the boats," the Opposition Leader said.
"Labor has now seen the boats restart and that is a huge problem if the numbers get back to where they were originally," Mr Dutton added.
Opposition home affairs spokesman James Paterson said "sending just a handful to Nauru is hardly going to keep Australians safe".
"More than a year on from the Albanese government's detainee debacle there are still almost 280 violent non-citizens free in the community; 65 have reoffended against Australians since Labor let them out. Zero have been preventively detained under laws rushed through in December 2023," Senator Paterson said.
"When it comes to community safety, it's always too little too late from Anthony Albanese. Only a Dutton Coalition government can be trusted to get our migration system back on track."
With Labor set to come under pressure from its left flank in inner city seats at the upcoming election, Greens immigration spokesman David Shoebridge said the government was attempting to "run to the right of Dutton".
"This posturing by Labor doesn't build their brand, all it does is legitimise Dutton's brutal rhetoric on migration and citizenship," Senator Shoebridge said.
"No one is in immigration detention because they have committed a crime. They are in immigration detention because of a visa issue.
"(Sunday's) announcement entrenches a two-class legal system where you can be subject to arbitrary detention and forced to a country you have no connections to because of where you were born."
Australian Lawyers Alliance spokesman Greg Barns said Nauru had "very limited resources" and was "not a place where people can really move on with their lives".
He said Australia had misused its relationship with the nation of fewer than 13,000 people by "treating it as a dumping ground".
