Key Takeaways
• Australia’s preventative detention laws for migrants have failed to yield any detention orders since December 2023.
• The government is shifting focus to deportation and third-country resettlement, paying countries like Nauru to accept migrants.
• The High Court’s NZYQ decision in November 2023 ruled indefinite detention unconstitutional, prompting legal and political changes.
Australia’s Preventative Detention Laws for Migrants: Shift to Deportation and Third-Country Resettlement
As of July 1, 2025, Australia 🇦🇺 stands at a turning point in its approach to managing high-risk non-citizens who cannot be deported. Home Affairs Minister Tony Burke has openly admitted that the country’s preventative detention laws for migrants have failed to achieve their main goal. With no successful preventative detention orders since the laws were introduced, the government is now focusing on deportation and third-country resettlement. This major policy shift comes after months of legal challenges, public debate, and political pressure following the High Court’s landmark NZYQ decision.
This article explains what has happened, why the government is changing its approach, and what these changes mean for migrants, the Australian public, and the wider immigration system.
What Happened: The Failure of Preventative Detention Laws
In June 2025, Tony Burke, the Home Affairs Minister, admitted that the legal threshold for imposing preventative detention on criminal former immigration detainees is so high that it is possible none will ever be detained under the current regime. These laws, rushed through Parliament in December 2023, were meant to allow the government to keep high-risk non-citizens in detention if they were considered a threat to the community. However, not a single preventative detention order has been issued since the laws came into effect.
The government’s preferred strategy has now shifted to deportation and third-country resettlement. Australia 🇦🇺 is paying countries like Nauru to accept non-citizens who cannot be sent back to their home countries. The first three cases under this new policy are currently being challenged in the High Court.
A recent incident in June 2025, where a member of the NZYQ cohort, Friday Yokoju, was charged with a fatal assault in Melbourne, has reignited criticism of the government’s handling of these cases. This event has put even more pressure on the government to find a solution that protects the public while respecting legal and human rights.
Background: How Did We Get Here?
The High Court’s NZYQ Decision
The story begins in November 2023, when the High Court ruled in the NZYQ case that indefinite detention of non-citizens who cannot be deported is unconstitutional. This decision led to the release of about 250 people, many with serious criminal records, from immigration detention.
Emergency Legislation
In response, the Albanese government quickly passed new laws in December 2023. These laws allowed for “community safety detention orders,” also known as preventative detention, for those considered a threat to public safety. The laws also included electronic monitoring and curfews. However, the High Court required a very high legal standard for someone to be detained under these new rules.
The Legal Threshold Problem
The main problem is that the legal threshold for preventative detention is so high that, so far, no one has met it. The government has spent a lot of time and resources trying to get detention orders, but has not succeeded. As Tony Burke put it, “the legal threshold is so high that it is possible none will ever be detained under the current regime.”
Key Numbers: Who Is Affected?
To understand the scale of the issue, here are some important statistics as of 2025:
- As of February 28, 2025:
- 980 people were in immigration detention facilities
- 830 (84.7%) had a criminal history
- 124 people were living in the community under residence determination
- As of May 30, 2025:
- 1,023 people were in detention facilities (951 men, 64 women)
- NZYQ Cohort:
- 28 members have been charged with federal offences since their release in 2024
- The group includes 12 convicted of murder or attempted murder, 66 sex offenders, 97 convicted of assault, and 15 with domestic violence offences
These numbers show that many of those released after the NZYQ decision have serious criminal backgrounds, which has fueled public concern and political debate.
The Government’s New Approach: Deportation and Third-Country Resettlement
With preventative detention laws proving unworkable, the government is now focusing on deportation and third-country resettlement. Here’s how the new approach works:
Step-by-Step Process
- Risk Assessment: Each person in the NZYQ cohort is assessed to see if they pose a risk to the community.
- Preventative Detention Application: If someone is considered high risk, the government tries to get a “community safety detention order.” So far, no one has met the legal standard for this.
- Deportation Efforts: For those whose visas are cancelled, the government tries to deport them to their home country or to a third country willing to accept them.
- Third-Country Resettlement: If deportation to the home country is not possible, Australia 🇦🇺 pays third countries, such as Nauru, to accept these non-citizens. This policy is currently being reviewed by the High Court.
- Legal Compliance: New laws make it a crime to refuse to cooperate with deportation efforts, such as not applying for travel documents. People who do not comply can face jail time.
Legal Challenges
The first three cases of third-country resettlement are now before the High Court. The government has reported some success in related NZYQ litigation, but the final outcome is still uncertain. The High Court’s decisions will play a big role in shaping the future of this policy.
Official Government Information
For more details on Australia’s immigration detention and community statistics, readers can visit the Department of Home Affairs official website.
Stakeholder Perspectives: What Different Groups Are Saying
Tony Burke and the Government
Tony Burke has been clear that the current preventative detention laws are not working. He prefers deportation and third-country resettlement as the main tools for dealing with high-risk non-citizens. Burke has said the government will keep trying to use legal avenues, but he does not expect any detention orders to be successful under the current laws.
The Opposition
Andrew Hastie, the Shadow Home Affairs Minister, has accused the government of a “catastrophic failure” to protect Australians. He has called for urgent new laws and has offered bipartisan support for tougher measures. The opposition wants the government to act quickly to fix what they see as a major risk to public safety.
Legal and Human Rights Advocates
Legal and human rights groups have criticized both indefinite detention and the lack of effective alternatives. They argue that Australia 🇦🇺 needs humane, rights-based solutions that protect both the community and the rights of non-citizens. These groups warn that paying third countries to take unwanted migrants could lead to human rights abuses and further legal challenges.
Policy Implications and Practical Effects
Why Preventative Detention Laws Failed
The main reason the preventative detention laws have failed is the very high legal threshold set by the High Court. To detain someone under these laws, the government must prove they are a serious and ongoing threat to the community. This is a very hard standard to meet, especially after the NZYQ decision, which emphasized the rights of non-citizens and the limits of government power.
Shift to Deportation
With preventative detention off the table, the government is now relying on deportation and third-country resettlement. This means:
- More focus on removing non-citizens from Australia 🇦🇺, even if it means paying other countries to take them.
- New laws making it a crime not to cooperate with deportation, including failing to apply for travel documents.
- Ongoing legal battles as courts decide if these new policies are legal and fair.
Impact on Migrants
For migrants affected by these policies, the consequences are serious. Those who cannot be deported to their home countries may face long periods in legal limbo, waiting to see if a third country will accept them. They may also face criminal charges if they do not cooperate with deportation efforts.
Impact on the Public
For the Australian public, the main concern is safety. The release of people with serious criminal records has caused fear and anger, especially after incidents like the fatal assault in Melbourne. The government’s new approach is meant to address these concerns, but it is still unclear if it will work as intended.
Impact on the Immigration System
These changes have put a spotlight on the limits of Australia’s immigration system. The country must balance public safety, legal rights, and international obligations. The current situation shows how hard it is to find solutions that are both effective and fair.
Future Outlook: What Happens Next?
High Court Decisions
The High Court’s upcoming decisions on third-country resettlement will be crucial. If the court rules against the government, it may have to find new ways to manage high-risk non-citizens who cannot be deported.
Possible Legislative Changes
The government has not ruled out more changes to the law. However, any new laws will have to respect the High Court’s rulings and Australia’s 🇦🇺 constitutional limits. Political pressure from both sides means the issue is likely to stay in the spotlight.
Ongoing Scrutiny
As reported by VisaVerge.com, ongoing public and political scrutiny is expected, especially if more incidents involving the NZYQ cohort occur. The government will need to show that its new approach can keep the public safe while respecting legal and human rights.
Practical Guidance for Affected Individuals
If you or someone you know is affected by these changes, here are some steps to consider:
- Stay informed: Follow updates from the Department of Home Affairs and trusted news sources.
- Seek legal advice: If you are facing deportation or third-country resettlement, talk to a qualified immigration lawyer.
- Cooperate with authorities: New laws require cooperation with deportation efforts. Failing to do so can lead to criminal charges.
- Know your rights: Legal and human rights organizations can provide support and information about your rights under Australian law.
Conclusion: A Complex and Changing Landscape
Australia’s preventative detention laws for migrants have not delivered the results the government hoped for. With no successful detention orders and ongoing legal challenges, the focus has now shifted to deportation and third-country resettlement. This new approach brings its own set of challenges, including legal battles, human rights concerns, and public safety worries.
Tony Burke and the government are under pressure to find solutions that work. The High Court’s upcoming decisions will play a big role in shaping what happens next. For now, the situation remains uncertain, and all eyes are on how Australia 🇦🇺 will balance safety, fairness, and the rule of law in its immigration system.
For more information on immigration detention and related policies, visit the Department of Home Affairs official website. If you are affected by these changes, consider reaching out to legal professionals or advocacy groups for support.
Learn Today
Preventative Detention Laws → Laws allowing temporary custody of high-risk migrants to protect public safety pending legal criteria fulfillment.
Third-Country Resettlement → Policy where Australia pays other nations to accept non-deportable migrants as an alternative to detention.
NZYQ Decision → High Court ruling in November 2023 declaring indefinite detention unconstitutional for non-citizens who cannot be deported.
Community Safety Detention Orders → Legal orders permitting detention of high-risk individuals under strict judicial standards for public safety.
Residence Determination → A legal status allowing some non-citizens to live in the community while subject to immigration conditions.
This Article in a Nutshell
Australia’s migrant detention laws failed due to a high legal threshold. Now, deportation and third-country resettlement replace preventative detention, shaping a challenging immigration future amid ongoing High Court reviews and public safety concerns.
— By VisaVerge.com
