NZYQ: Preventative detention cases will be brought against High Court cohort

It is understood the government is inching closer to launching its first preventive detention applications, and has recruited an additional 46 lawyers to build strong cases surrounding some of the 149 non-citizens impacted by the NZYQ decision.

All seven justices of the High Court last year ruled indefinite immigration detention for non-citizens with no prospect of deportation was unlawful.

Home Affairs Minister Clare O’Neil said NZYQ was the latest in a series of recent High Court decisions that rewrites immigration law and the role of government and the executive.

“The High Court, through a series of major decisions, has drawn new boundaries around the powers of the executive and the parliament,” she said.

“There continues to be uncertainty about exactly where those boundaries will ultimately be drawn when it comes to key aspects of migration law.”

It resulted in 149 non-citizens, including seven murderers, 37 sex offenders and 72 violent criminals being released.

The cohort also include 16 domestic violence offenders, 13 drug offenders, and five people convicted of people smuggling or other crimes of international significance.

Fewer than five with “low level or no criminality” were also released.

The government rushed through laws in the weeks following the decision, mandating electronic ankle monitors and requiring the group abide by curfews and other movement restrictions.

They also passed preventive detention laws that would allow individuals to be held for up to three years at a time if they are deemed by a court to be an unacceptable risk to the community.

As for why no such applications had yet been launched, Immigration Minister Andrew Giles said there was a lot of work involved.

“The government has made significant progress towards applications for preventive detention, but there is a very high legal threshold to be met for a successful outcome,” he said.

“We’re working through up to 35,000 documents per person in order to make the strongest possible applications.”

For a court to re-detain an individual, they would have to be satisfied that there was no other option available to keep the community safe.

The Australian Border Force on Friday offered a rare glimpse into their operations, letting cameras into their Canberra headquarters where they track the NZYQ cohort.

ABF Commissioner Michael Outram said the ongoing surveillance, paired with the Community Protection Board that was set up in December, were crucial to keeping the community safe.

The board met on Friday for the eighth time, considering the circumstances of all individuals moved to a Removal Pending Bridging Visa immediately after the High Court decision.

“The board will continue to review this cohort, and any new individuals who become holders of a BVR, to ensure the safety and security of the Australian community,” Commissioner Outram said.

It is understood that the board, which has prioritised managing the NZYQ fallout, will soon begin giving monthly reports that will update the community on details around the visa conditions imposed on the 149 former detainees.

The first report will be published in coming weeks.

Ms O’Neil said the government’s priority was community safety.

“The government must always act consistently with High Court decisions, and the government is ready to respond to an evolving legal environment while continuing to ensure that there are layers of community protection in place,” she said.

“We have not sat idly by as the former government did – but have engaged legal and security experts through the Community Protection Board to ensure we are ready and able to respond.”

Parliament resumes on Monday and the Coalition is expected to use Question Time to continue to pressure the government over its ongoing handling of the NZYQ case.

It follows the government this week admitting to issuing invalid visas to the 149 people released from detention after the NZYQ decision, with the potential for charges to be dropped against those who were redetained for breaching reporting and curfew conditions.

Deeming it a “technical issue”, the visas were deemed illegitimate and the government rushed to reissue visas to the cohort.

The Coalition’s immigration spokesman Dan Tehan said it showed Labor’s “incompetence” to deal with the issue, and called on Anthony Albanese to “step in directly and sort out the mess”.

“The Australian people can no longer continue to put up with this level of incompetence or failure to do due diligence,” Mr Tehan said in a statement this week.

“Once again, this Labor government has made a mistake and then not been upfront with the Australian people.”