The immigration minister, Andrew Giles, had released one murderer and one person convicted of “attempt or solicit murder” into community detention even before the high court ruled that indefinite immigration detention was unlawful.
In June Guardian Australia revealed that 25 of the then 153 people affected by the high court’s ruling had already been released into community detention by ministerial discretion but Giles refused to say if he was responsible for the release of those with the worst offending.
According to court documents in the case challenging ankle bracelets and curfews on 8 November 2023, 25 people had previously received residence determinations, allowing them to live at a specified place without restrictions later imposed on them, such as curfews.
One person – identified only by the number 56 – had been convicted of murder and sentenced to eight years’ imprisonment in 2005. After serving a criminal sentence, the person was released from immigration detention to community detention through a residence determination.
In response to a freedom of information request, the home affairs department prevented key documents from release. But, it revealed, the decision by a minister to use section 197AB of the Migration Act to grant a residence determination to person 56 and the statement disclosing this to parliament were both dated 9 December 2022.
The only decision of that date tabled in parliament was signed by Giles, who explained he thought it was “in the public interest” for person 56 to reside at a specified place due to unspecified “individual circumstances”.
One person – identified as 19 – had been convicted of “attempt or solicit murder” in 2011 and sentenced to 11 years in prison, and was later released from immigration detention into community detention.
The department revealed the decision to allow person 19 into community detention occurred on 7 July 2023. All three statements to parliament of that date and all statements within the 15 days parliament was required to be notified were signed by Giles. They also cited the “public interest” for the decision.
The 25 people released into community detention before the NZYQ decision included: three people convicted of offences in the category “domestic violence, stalking or breach of domestic violence order”; six people convicted of offences in the category “intentional or reckless injury or assault occasioning actual bodily harm”; and three convicted of “armed robbery, aggravated burglary, robbery or burglary”.
Several of the 25 had no criminal conviction; many were convicted of fraud, “other non-violent offences”, or lower level offences, such as common assaults.
In November, Guardian Australia revealed that of the 93 people initially affected by the high court ruling, 21 were already living in the community, including 16 let out by the Albanese government and five apparently by the former Coalition government.
The solicitor general, Stephen Donaghue, told the high court that the “best assessment” of the public servant who compiled these figures was that the 16 had been released by the “current minister” – Giles.
Despite at least 16 people having been released by Labor, the home affairs minister, Clare O’Neil, has said on several occasions since November “if it were up to [her]” the entire NZYQ cohort would “still be in detention” or would never have been released.
The shadow immigration minister, Dan Tehan, said that O’Neil must now explain “how she has looked the Australian people in the eye and said if it was up to her none of the NZYQ cohort would have been released when [the Albanese government] had in fact released a murderer and an attempted murderer before the NZYQ decision was handed down”.
“The facts have caught up with her once again,” he told Guardian Australia.
A spokesperson for Giles said: “All individuals released by the court are subject to strict visa conditions to ensure they are monitored.”
A spokesperson for O’Neil said: “The minister has been very clear about her position – which is that the preferred option for the cohort was the one taken away by the court.”
In June a government spokesperson refused to say if the Albanese government had released person 56 and 19, because “the government does not comment on ongoing court matters”.
“The commonwealth is arguing strongly that electronic monitoring and curfews are necessary for community safety,” they said.
That case will be heard on 6 August, in a further challenge to the Albanese government on its handling of those released as a result of the NZYQ high court ruling.
