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Labor’s Failure to Deport Dangerous Non-Citizens

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At the recent Senate Estimates, I asked Senator Watt why Labor is not deporting unsuitable and dangerous non-citizens from Australia. He explained that those who had been in detention could not be deported, citing two distinct groups affected. The first group consisted of approximately 150 detainees released into the community following a recent High Court decision, 29 of which have re-offended since release and include individuals convicted of serious crimes like murder, rape, and child sexual offences.

The second group comprises individuals whose visa cancellations were overturned by the AAT due to issues surrounding the Giles Directive 99 scandal. Despite subsequent visa cancellations for some in this group, there have been no deportations from either cohort since the mishandling by Labor.

Transcript

Senator ROBERTS: Thank you for appearing again today. My questions are concise and straightforward, and I hope the answers will be similar. In the context of the mass release from immigration detention of
approximately 150 noncitizens awaiting deportation, how many of these detainees were in fact released as a result of the decision in NZYQ?

Mr M Thomas: All of the releases from detention that we’re talking about with NZYQ were as a result of the new High Court test set in that case around the real prospect of removal from Australia in the reasonably
foreseeable future.

Senator ROBERTS: Is it true that 37 of these men released into the community have a history of sexually offending, including against children?

Mr M Thomas: As of 30 April 2024, 39 of those individuals did have a previous conviction for sexually based offending.

Senator ROBERTS: Is it true that seven of these men were convicted of either murder or attempted murder?

Mr M Thomas: That’s correct.

Senator ROBERTS: Is it true that 72 of these men had convictions for assault or violent offending, armed robbery or kidnapping?

Mr M Thomas: As of 30 April that number is 73.

Senator ROBERTS: How many of these released detainees have now illegally reoffended?

Mr M Thomas: I believe the deputy commissioner answered that question earlier today.

Senator ROBERTS: What’s the number?

Ms Holben: 29.

Senator ROBERTS: Thank you. What offences have been included in the range of charges, including the senior citizen brutally bashed and allegations of a sexual predator being active here?

Mr Outram: We did provide that evidence before the lunch break.

Senator Watt: We went through that in some detail before the lunch break.

Senator ROBERTS: You are aware of Mr Emmanuel Saki, a Sudanese man who was recently released from immigration detention. He has just been charged with the murder of another man here on 12 May this year. That was two weeks ago. Are you aware of that?

Ms Foster: Yes.

Senator ROBERTS: What’s now being done to deport these men?

Senator Watt: You’re mixing together a couple of different categories of people here.

Senator ROBERTS: We don’t want them here.

Senator Watt: I’d point out to start with that, for all 153, I think it is, people who were released from detention as a result of the High Court decision, the government actually had those people in detention for a
reason. We don’t want them roaming the streets either, but the High Court has made a decision and we are bound by the law.

Senator ROBERTS: Can you deport these men?

Senator Watt: For starters, as we have gone through before, there are a range of protections in place for the Australian community surrounding these people, such as electronic bracelets, curfews and a range of other
requirements that no government has ever imposed on a cohort released from detention. Obviously, in relation to the NZYQ cohort, the government is in the process of applying for preventative detention orders, which would effectively see those people returned to detention. Before the lunch break, there were some questions about where that was up to. That’s the NZYQ cohort.

Senator ROBERTS: But there has been nothing done to deport them?

Senator Watt: No. I would say that one of the reasons is that the reason for the High Court decision is that the High Court found that there was no reasonable prospect of those people being deported, because, for example, they were stateless. They don’t have citizenship in any country. It is not legally possible to deport them. Again, I’m paraphrasing. Officials can jump in if I explain some of this incorrectly. That’s the reason why those people haven’t been deported. That’s the reason why they are now not in detention but subject to all those other protections.

Senator ROBERTS: All of the 150-odd are stateless?

Senator Watt: I don’t think all of them are, but there were other reasons that it’s not possible to deport them. The officials might be able to explain it to you.

Mr M Thomas: It might be because we have protection obligations for them. It could be because they’re stateless. It might be because there are issues with identifying their identity or their country of origin. All of that
culminates in there being no real prospect of their removal from Australia in the foreseeable future.

Senator Watt: Senator Roberts, you asked about the Saki case. That is a separate situation. As far as I’m aware, Mr Saki is not one of the NZYQ cohort. He was someone who had come to Australia and was given a visa
at some point along the line. The government cancelled his visa because of character issues or criminal offences—whatever the reasons were. He appealed that decision to the AAT. The AAT overturned the decision to
cancel his visa. He was therefore—

Senator ROBERTS: Minister, is that because of any influence of Minister Giles’s directive 99?

Senator Watt: We’ve spent the best part of two days discussing this. What I have been saying is that the direction that Minister Giles gave did ask government decision-makers and the AAT to take into account the
length of time someone had been here in Australia—

Senator ROBERTS: And their ties.

Senator Watt: but not at the expense of the seriousness of their offending. But the AAT has done what it has done, and for that case and other cases they have overturned the government’s decision to cancel those visas,
despite the fact the government, in the AAT, argued for the cancellation of those visas. Now Mr Saki’s visa has been cancelled by the minister, and he is seeking urgent advice from the department about the range of other cases that have come to light in the last couple of days.

Chair: I don’t want to be too hardline about this, because I know that there are different sections of the department that deal with both of these issues, but, Senator Roberts, just for your information, we have moved on
to outcome 3. I know that there might be some crossover and that the department will seek to answer your questions when they can. We did have extensive questioning about outcome 2 from yesterday onwards. We’re now in outcome 3. If that needs to be clarified at the table for senators, then, if you can, assist Ms Foster when questions arise. I know dealing with the different cohorts is difficult, but we’ll do our best to try to keep on track in that way. Senator Roberts, have you got a question?

Senator ROBERTS: Was the Migration Amendment (Removal and Other Measures) Bill 2024 simply to ensure incarceration as an alternative to being detained for these men?

Senator Watt: Again, I might begin the answer and let officials explain further. The removals legislation, which the government has introduced and which has not yet been passed by the Senate and which the opposition has not agreed to pass yet, is for a different purpose. It was to deal with a different gap in our legal system. So maybe officials could pick up at that point with some more detail.

Ms Foster: There were two primary purposes to the removals bill. The first was to give us the power to compel people who had exhausted all legal avenues of remaining in Australia to cooperate with their removal so
that people couldn’t frustrate our efforts to remove them—by, for example, refusing to fill out applications or come to interviews—and to make it an offence should they not do that. The second element of the bill was to allow us to declare countries who frustrated our attempts to return their nationals to them countries of removal concern and to enable us to take actions about how we manage applications to come to Australia from those countries.

Senator ROBERTS: Surely, Minister, there was a way that the government could’ve addressed this issue before the decision in NZYQ was handed down. Why didn’t you?

Senator Watt: The High Court’s decision in NZYQ essentially went in a different direction to what the law in Australia had always been.

Senator ROBERTS: So you didn’t pre-empt that at all.

Senator Watt: Look, we’ve gone over this at length in previous estimates hearings.

Senator ROBERTS: Okay. Let’s move on to border security then. Why is our border security policy being made on the run? For example, why has the number of surveillance flights by Border Force of our northern
borders by aircraft been reduced over the last year?

Senator Watt: Can I just say one thing. Of course, I don’t accept the proposition that our border security policy is being made on the run. We have increased funding for Border Force and border security to a level that
no government has ever provided, and Admiral Sonter, in his role heading up Operation Sovereign Borders, has pointed out that—I can’t remember the exact words—essentially, there has been no change to the policy settings for Operation Sovereign Borders. But the officials can talk to you about surveillance flights.

Mr Outram: Specific to surveillance flights, I have Deputy Commissioner Dale with me. There has been a reduction in hours flown. That has been for two reasons. The first is persistent mechanical issues with the fleet of Dash 8s that the Border Force has. The second, with the contractor that we employ, is their ability to bring on pilots. There’s a global shortage of pilots, and they’re affected by that. I might hand over to Deputy Commissioner Dale to give you more details.

Ms Dale: The commissioner has flagged that there has been a reduction in flying hours this year and the commissioner has already outlined the causes. I think the rear admiral will go to the point that, notwithstanding
the reduction in hours that we have had in the Australian Border Force, aerial surveillance has been maintained to the standard he requires—fortunately, through the augmentation of flights through the Australian Defence Force.

Senator ROBERTS: Is that signalling a decrease in hours flown in the future, then, if it meets the standard? Or is it going to be that, in the future, standards are changed?

Ms Dale: No. We’re working very closely with the provider to better understand the barriers. The commissioner has spoken to the issue around crew. There is a global shortage of crew for the fixed-wing aircraft
that we’re operating. It’s also true that from time to time we have mechanical issues that are reasonably frequent with any sort of piece of machinery, so they can sometimes be a factor.

Senator ROBERTS: Is the reduction in hours flown a reason for the recent increase in the number of successful arrivals into Australian waters of foreign people smugglers and their human cargo?

Rear Adm. Sonter: There’s no direct correlation there. On a regular basis, I look at what is the threat and risk, and I adjust the posture accordingly. As Kaylene Dale indicated, one of the beauties about this role and the
coordination role is that I have both ABF and Australian Defence Force assets to pull on for this mission. While she’s articulated the decrease from the ABF funded actual air surveillance, we’ve increased the ADF air
surveillance to ensure that we have an enhanced posture in the north-west.

Senator ROBERTS: Minister, is it the soft policy of Labor Party governments in the past, enticing people smugglers to be prepared to risk the boat and cargo for such rich profits as a full boat of paying passengers for the Aussie Express?

Senator Watt: No. Never has been and never will be.

Senator ROBERTS: Are you aware, Minister, that Australians now feel unsafe personally in their own country due to this failed migration policy? We’ve got boats arriving, we’ve got people who are murdering people.

Senator Watt: I’m sure there are some people in Australia who feel unsafe. What I can say is that this government is spending more money on border security than we’ve ever done before. Unlike certain others, including people in the room, we are not running down and disparaging our border security policies—which is an incentive to people smugglers—and we are taking action to deal with court decisions that are not of the
government’s making and that the government opposed.

Senator ROBERTS: Isn’t quoting of spending more money just a lazy way of saying you’re trying to do something? I look at your energy policy and never before have we spent so much money and we see the highest
price of electricity.

Chair: Senator Roberts, that is not relevant to this instance.

Senator ROBERTS: My point is that money does not equate to success.

Senator Watt: You might say that spending $569.4 million more in this year’s budget on things like more boats, planes and unmanned vehicles for Operation Sovereign Borders is lazy. I wouldn’t put it that way.

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Minister Dodges Accountability as Border Force Grapples with Safety Concerns

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At the recent Senate Estimates, I inquired with Border Force officials about what was needed to ensure the safety of Australians.  True to form, Minister Watt attempted to shift blame onto the previous government. He mentioned measures like monitoring and curfews, but refused to accept responsibility for detainee-related crimes, and failed to offer a reasonable solution. 

When asked about the government’s legislation regarding the re-detention of dangerous detainees, departmental representatives explained that it was a high bar to meet before requests could be put before a court seeking an Order.

Transcript

Senator ROBERTS: Would you agree, Mr Outram and Ms Holben, that it’s a difficult issue? It’s a challenging issue. You’ve got safety considerations. You’ve got legal considerations—all the things you mentioned a minute ago, Mr Outram. It’s not easy.

Mr Outram: Running borders is challenging.

Senator ROBERTS: Yes, it is, and it’s a fundamental duty of the federal government to keep our borders secure. To make it clearer and easier for us and safer for people, what are your greatest issues? What are the core
issues that you need to have addressed by the government?

Mr Outram: That’s a very wide-ranging question. I could talk for a very long time. Our functions fall into three areas, I suppose. One is the customs function that we undertake, which is of course about collection of duty revenue, management of and administration of the Customs Act, and ensuring that prohibited goods don’t get brought across our border.

Senator ROBERTS: I mean in relation to keeping people safe in this country and keeping our border secure. What do you need on this issue that we have been talking about at length for hours now?

Mr Outram: Preventing prohibited goods from coming in across our border keeps our country safe. So I’d say—

Senator ROBERTS: On this issue—

Mr Outram: the management of cargo is a big area for us. We have, as I said in my opening statement, a 70 per cent projected increase in cargo over the next ten years.

Senator ROBERTS: With respect, I’m trying to help you on this issue, which is about the safety of the citizens of this country and about dealing with hardened criminals, murderers, rapists and domestic violence offenders. I’d like to know: what are your biggest cost components? You’ve talked about surveillance. You’ve talked about so many different measures that you’ve had to do—’unprecedented’. Senator Ghosh was getting at a good point. But what do you need from us or what do you need from the government to fix this?

Mr Outram: As I said earlier on, our budget is sitting at unprecedented levels. There’s a lot of work going on behind the scenes in relation to our civil maritime capabilities. We’re working very closely with Defence and looking at how we put those capabilities on a more sustainable footing going forwards into the future. That will be really important.

Senator ROBERTS: You said that you have to comply with the law. I’m pleased to hear you say that. You said that you’ve got to do it within the legal regime you’ve got. What legal regime would you prefer? What fine-
tuning would you need?

Mr Outram: That’s really a policy question.

Senator ROBERTS: Minister, what do these people need to solve this problem?

Senator Watt: What was the question?

Senator ROBERTS: We’ve talked about unprecedented cost levels and unprecedented risks. What do we need to solve the problem?

Senator Watt: Sorry, what is the problem that you’re talking about?

Senator ROBERTS: Safety of people, keeping these murderers and other criminals in the country at the moment—how do we get rid of them? How do we protect people’s safety?

Senator Watt: What the government has been trying to do is to keep the Australian people safe. That’s why there are a range of cases that have had their visas cancelled with a view to deportation. Those people have been kept in detention during that time. As a result of a High Court decision and other legal decisions, the government’s attempt to keep these people in detention or deport them has been overturned. What we’ve done is follow the law, comply with the law, which I would hope that you would agree is needed, but we do it in a way that maximises the safety of the Australian people by putting into place—

Senator ROBERTS: We’ve also got—

Senator Watt: Hang on, can I just finish—by putting into place an unprecedented system of protection with electronic monitoring and curfews. We just heard in response to those questions from Senator Ghosh that, in the time Mr Dutton was the home affairs minister, it would appear that dozens of murderers, sex offenders and other offenders were released from detention without a single skerrick of protection like what this government is putting in place. There was not one electronic bracelet nor one curfew, and yet Mr Dutton and his cohorts are out there claiming that this government is not protecting the Australian people when we’re doing more than Mr Dutton ever did as the minister.

Senator ROBERTS: Will Minister Giles rescind directive 99? Will he stop people claiming to be Aboriginal connected to overturn a deportation order, failing character tests? Will directive 99—

Senator Watt: Senator Roberts, I think the chair has been clear that we’ve dealt with direction 99.

Senator ROBERTS: Let’s move on then. Why has Labor not applied to redetain noncitizens who pose an unacceptable risk to the community in the last six months since Labor passed legislation specifically aimed at
doing just that? Why have you not redetained people?

Senator Watt: I think Ms Sharp addressed that prior to the lunch break, but she might be willing to give you a summarised version of that again.

Ms Sharp: Certainly, Senator. As I was saying prior to lunch, the Community Safety Order scheme is modelled on the High Risk Terrorist Offenders Scheme. Applications under it need to be made to the court and need to be accompanied by a very substantial set of evidence. The evidence needs to go to all information known to the Commonwealth for why the order should be granted, and also all information known to the Commonwealth for why the order should not be granted. That requires an extensive review of records held by government agencies across the Commonwealth, and the states and territories, followed by the receipt of expert evidence that looks at the risk profile of the individual. That expert evidence is gained through individual assessments, one-on-one with psychiatrists et cetera, to really form up whether we have a reasonable case to demonstrate to the court that the only way to protect the community from a high risk of the person committing a serious, violent or sexual offence is detention. It’s a very high legal bar to cross.

Senator ROBERTS: Let’s move on to the recent Palestinian refugees from Gaza given fast-track visas. Why were they given special treatment, where some visas were said to be given with only an hour of scrutiny and
processing? An hour?

Chair: Senator Roberts, officials will probably dispute the assumptions made in your question. I won’t put myself on the other side of the table, but we did have extensive questioning on that earlier—it does relate to
outcome 2 as well.

Senator ROBERTS: Okay. Given that 80 per cent of Palestinians support the inhuman terrorist Hamas regime in Gaza, how can these Palestinians be shown not to be a danger to Australians in such a short time?

Chair: Senator Roberts, that relates to outcome 2. Apart from being divisive language, it’s probably not an appropriate question in parliament—

Senator ROBERTS: Last question—when will Palestine be declared a country of concern so that high-risk applicants from Palestine are not able to be considered for a visa?

Senator Watt: I’m not actually even sure if that’s possible, given that Palestine is not a nation.

Senator ROBERTS: So you have to have a nation before you can—

Senator Watt: I don’t know, I’m guessing that’s the way it works, but officials might know better than me.

Senator Reynolds: Yes—

Senator Watt: I’m doing my best to assist the committee, Senator Reynolds!

Chair: Yes.

Senator ROBERTS: Okay, thank you very much. Thank you, Chair.

Chair: Thank you, Senator Roberts. Senator Paterson.

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