TRANSCRIPT – PRESS CONFERENCE - STATEMENT ON NZYQ - CANBERRA - SUNDAY 16 FEBRUARY 2025

 E&OE TRANSCRIPT

PRESS CONFERENCE

STATEMENT ON NZYQ

SUNDAY, 16 FEBRUARY 2025

TONY BURKE: The first principle of the immigration system of any country in the world, including Australia, is to be in a nation, you should either be a citizen, be on a visa or be eligible and applying for a visa. On coming to government we – there were a large number of people who were in detention but could not effectively be removed. These individuals had failed the character test and, as a result of that, their visas had been cancelled. For various reasons – different for each person – they couldn’t be returned to the country of their origin, so, therefore, they were simply kept in indefinite detention.

When the High Court brought down the NZYQ case it made clear that – it set a new precedent simply stating – without me giving a quick summary – the principle was to keep someone in detention in those circumstances you could only do so if you had a genuine opportunity to remove them in the near future. 

When NZYQ came down there was an immediate legislative response establishing new visa conditions and community safety orders. I’ve been asked many times by members of the gallery since I took on this portfolio as to how we’re going in using those community safety orders to be able to launch an action for preventative detention. The threshold in that legislation, because of other constitutional precedents, is very, very high. And while as I’ve continued to be briefed and work with my department, there are no cases for preventative detention that are nearly ready to go. There may be some other community safety orders in terms of supervision orders that we’re getting very close to being able to launch action on, but in the absence of that legislation, we have been left in a situation where, because of the NZYQ decision, these individuals who failed the character test, who are in a situation where in any other circumstance they’d be leaving the country, have been within the community.

When the YBFZ decision came down I introduced legislation to the Parliament. I was asked in question time at the time by the opposition as to why we weren’t taking the action I described under the previous act to get people into detention, and I made clear in response to the opposition that my priority wasn’t to have them in detention; it’s that they should leave the country. When people have come to your country and seriously broken the law and as a result of breaking the law an assessment is done as to whether or not they pass the character test, which assesses their criminal history and all the elements of their character, when they’re found to not be eligible for a visa under Australian law, they should leave. It’s not simply a case of the aim being to have them in detention; the aim is for them to not be in Australia.

After I’d introduced that Migration Amendment Bill to the Parliament, the Government of Nauru approached Australia, while the legislation was in Parliament, with an interest in forming an arrangement with Australia where they would decide as a sovereign nation who they might want to issue a visa to.

Yesterday Nauru issued three 30-year visas for members of this cohort. All three people are people who have failed the character test and, as a result, were on what’s called a Bridging Visa R – a removal pending visa – a BVR.

The issuing of those Nauruan visas immediately cancelled by law the visa that they were on and, as a result, there was an obligation on my officials to take them into detention. Overnight, officers of the Australian Border Force have detained all three and all three are now in immigration detention.

They will be put on a plane and sent to Nauru as soon as arrangements are able to be made. That will not be within the next seven days, but it will be as soon as possible. I want to thank the Australian Border Force for their professionalism and the work that they’ve done overnight and for the work that they do every day.

I send a reminder that the – when people commit a crime, generally those crimes are dealt with by state enforcement and the punishment for the crime is a criminal penalty and it goes forward. Separate to that in running an immigration system we have do have a character test and we have to decide whether it’s reasonable for someone to have a visa in Australia.

As Australia’s Immigration Minister, I don’t have unlimited places for people, and there are many good people who want to come to Australia who don’t get visas. When somebody has come and treated Australians in a way that has shown appalling character, their visas do get cancelled, and when their visas are cancelled, they should leave. I am very grateful to the Government of Nauru that we are in a situation now where three people where previously the situation had seemed intractable are now on a pathway to leave Australia.

JOURNALIST: So we’ve got a solution for these three people. How many of this cohort remain at large in the community?

TONY BURKE: The situation here is that any country, third country, that issues a visa for them would – it then creates new rights for the government under this act on removing people. Nauru had described these three visas as the first three. And that’s how it should be seen.

JOURNALIST: Minister, can you explain what it is about these three cases, what's made them first? What qualifiers [indistinct]?

TONY BURKE: 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, just as for Australia the Immigration Minister of the day – you know, me – makes decisions about the laws that determine who gets visas to come here, the Government of Nauru determines who gets visas to go there. All three, though, are violent offenders. One is a murderer.

JOURNALIST: [Indistinct] violent offenders and murders is obviously an unusual step by a country. What did we give Nauru in return for these visas?

TONY BURKE: There’s an arrangement. There’s an arrangement with Nauru, as is the case and has been the case for many, many years. We don’t go through the details of the costs involved with that. But let me just say this with respect to cost: yes, there’s a cost in reaching arrangements with third countries. There is also a cost in the high level of monitoring under Operation AEGIS that happens when these individuals are in the community here in Australia. There was also a cost when they were being held in detention. There was a cost before that when they were being held in prison. But no cost has been greater than the cost to the Australian community of their crimes.

JOURNALIST: You travelled to Nauru recently, and before that you were in Timor Leste. Are there other countries that are considering this type of arrangement for these people?

TONY BURKE: Look, I’m not going to go through nation by nation. Obviously there are people who get deported from Australia every week, and the concept of returns is something that we work with countries with all the time. On this particular arrangement the only country that has come to us is Nauru. And only because you raised it – because I don’t want to set the hares running – the matter was not discussed at all in Timor Leste.

JOURNALIST: Minister, these three individuals, was the Government of Nauru [indistinct], was the Government of Nauru convinced that [indistinct] and does this mean, then, that the people who are the most violent people at most risk to the community, are still in Australia and not being able to be put behind bars and by the sounds of it there’s no prospect of [indistinct] case?

TONY BURKE: These individuals, the Government of Nauru is aware of their background. The Government of Nauru is a sovereign government and they’ve made a decision as a sovereign government to issue these visas. Under our character test they are not eligible for a visa in Australia. Given that that visa has been issued, they should leave.

JOURNALIST: [Indistinct].

TONY BURKE: I will go back – there’s been a few attempts behind you.

JOURNALIST: Minister, you say you anticipate that this will be challenged in the Australian courts. What –

TONY BURKE: Everything I do is.

JOURNALIST: What makes you confident that these laws will hold up where the others haven’t?

TONY BURKE: The Parliament took into account every available precedent when we passed these laws. And so – but, you know, everything in my portfolio, my portfolio is always – a little fun fact, there are more legal cases against the Immigration Minister than any other minister in the Australian Government. Always has been, always will be. Lawyers haven’t launched anything yet. I simply whenever I make any decision presume that there’ll be a contest in the courts. And, you know, we will go in there with – in a very strong position as a Commonwealth dealing exactly with the legislation that the Parliament passed to be able to send people to third countries.

JOURNALIST: Minister, there's several cases in a couple of courts now where people are trying to have the same NZYQ principle against their indefinite detention applied to them. What’s your view of how this agreement could principally address that question of whether people are being indefinitely [indistinct]?

TONY BURKE: Well, certainly – I won’t comment on the case before the High Court. What I’ll say is this: these three individuals are certainly not being indefinitely detained. Certainly not. They’re being detained pending removal. We know exactly when they’re going and there is a visa. We are – there are final pieces of logistics that now get organised. But they had to be taken into detention the moment Nauru had issued the visas because at that moment the visas they were on were cancelled and under the Immigration Act they became unlawful non-citizens of Australia.

JOURNALIST: Minister, can I just ask you something on another subject? Peter Dutton today has seemed to confirm that the Coalition will withdraw the $300 energy rebate. How long will the government leave it in place?

TONY BURKE: The thing that I’ll say is at every turn what Peter Dutton has pushed for is higher energy prices. Whenever we’ve done anything to give energy bill relief he’s voted against it in the Parliament. And, again, he is going to the election proposing the most expensive form of new energy. Everything that Peter Dutton proposes makes the cost of living harder. He makes energy prices worse. He makes wages worse. He opposed cheaper TAFE. You can go list after list after list, but effectively if someone’s going ahead and effectively their theory of Australian households is Peter Dutton says you should have higher prices and lower wages, that’s what he’s taking to the Australian people.

JOURNALIST: Minister, Mr Dutton also talked about [indistinct] the insurance markets so consumers aren't ripped off potentially another –

TONY BURKE: You’ll respect I’ve got so much in my portfolio, I’m just – I haven’t spent the morning watching Mr Dutton’s interview. There’s a lot of operational work ongoing here.

JOURNALIST: Minister, on your portfolio, the government today matched the Coalition promise to ban foreign property investment. Is the government also considering matching their promised cuts to the immigration intake?

TONY BURKE: What I’ll say on this is a few things: first of all, Peter Dutton on immigration, don’t look at what he says, look at what he does. No Australian immigration minister has issued more visas than Peter Dutton. Australia has only had more than 9 million visas issued twice in Australian history – both times Peter Dutton was the relevant minister.

Peter Dutton had an opportunity to vote for containing the area of visas that was growing the fastest – student visas. They opposed that legislation. They opposed that legislation. They voted for student visas to be unlimited. And then on top of all of that they’re saying the visas that had the most integrity issues – the golden ticket visa, the one that worked as cash for visas – is the one they want to bring back.

Now, you gave reference to housing. How many houses do you think a cashed-up investor who's only qualification for coming here is they've got cash, how many homes do they end up buying? And they're the ones that Peter Dutton is wanting to favour. So, you can talk - Peter Dutton can talk all he wants about what he claims he would do with immigration. But he's actually held the portfolio and everything that he has done is the opposite of what he’s saying right now. 

JOURNALIST: Can you just confirm how many –

TONY BURKE: I’m not avoiding you; I’m just trying to make sure everyone gets a go. 

JOURNALIST: Earlier this year a UN committee found that the Nauru facility counted as being within Australia’s jurisdiction and they made a specific reference to the financing of it by Australia. What’s your view on this – on that in terms of today’s announcement?

TONY BURKE: Nauru is a sovereign nation. Nauru is a sovereign nation and should be treated with respect as a sovereign nation.

JOURNALIST: Are you able to confirm how many people are in the community as a result of the NZYQ decision?

TONY BURKE: I’m not providing that right now.

JOURNALIST: What rights will these individuals have when they resettle in Nauru? Will they be free in the community? Will they be able to get work? Will they be in detention? Like, what’s the situation?

TONY BURKE: Yeah, the – I’ve inspected the facilities that they’ll be living in on Nauru. And it – they are, you know, individual dwellings, shared kitchen space. They are not contained. They are able to move around the island. The island is not that easy to move around. But from where they will be it’s a relatively short walk to a bus that will allow them to be – to go into the community and they will be allowed to work in the community.

JOURNALIST: Minister, how did Nauru come to choose these three? Were they shopping for particular visa holder – detention visa holders? Or did Australia offer these three names?

TONY BURKE: Look, there have been discussions between my officials and the government of Nauru, and these are the first three visas that have been issued.

JOURNALIST: As Arts Minister, what do you think of Creative Australia’s decision to drop the artist that was representing Australia? There’s been a lot of criticisms from artists for that.

TONY BURKE: I’ll say – I’ll say two things: first of all – I’ll say three. First of all, the decision both to retain and then to cease the retention of the work of that artist was a decision made by Creative Australia, not made by me. I do – I always support those decisions being made at arm’s length, and I have always supported the actions of the board of Creative Australia.

Secondly, though, I will say - so I support that they've made the decision, but it's been made at arm’s length from me and I don’t want to pretend otherwise. While there is one work where I made clear the personal reaction I had when I saw one online, I have seen this artist’s work over the years, and aside from that work I will say he is an extraordinary and a gifted artist. I was looking forward, as I think everyone at Creative Australia was, to the work that he’d been commissioned to do at the Venice Biennale. And so I don’t want everything that’s happened for people to think that we are talking about anything – anyone other than someone who is – has been producing work of great, great, extraordinary quality and a very special work bringing together communities of Western Sydney that he was proposing to do in our pavilion.

But the final thing that I’ll say is the work in particular, the one that drew on 9/11, is a work which I hadn’t seen. It’s some 20 years old. It was on his web page. And I understand why Creative Australia took the immediate action that they did.

JOURNALIST: Just on managing detention, you talked about, you know, building cases pretty soon after becoming Minister.

TONY BURKE: Yes.

JOURNALIST: Is sounds like you’re not going to be able to pursue them. Has that been disappointing for you? And was there a flaw in the legislation, the government’s legislation?

TONY BURKE: The legislation went to the edge where constitutional precedent allowed it to go. So that’s what the legislation did. But has been frustrating? Of course it has been. Like, there is nothing more important to this government than community safety. Nothing more important than community safety. And so if I’d been able under that legislation to launch actions for preventative detention on a huge scale, I would have jumped at every single opportunity.

The way it’s been going and the way I’ve been briefed, there are some lesser orders that are available under that legislation where we might be close to being able to deal with them that way. 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.

JOURNALIST: How many can Nauru seriously take, though? Are they considering taking, sort of, over a hundred –

TONY BURKE: It’s a decision for the government of Nauru.

JOURNALIST: With respect –

TONY BURKE: I was going in between the two. You sort it out between you, and we’ll make those two the last two.

JOURNALIST: With respect to the payments made to Nauru, obviously being one of the third countries that will resettle these individuals, was it – I know you can’t give us the exact figure, but is it millions, is it billions, is it a lump sum, is it a per visa holder situation? And can you also talk to – you know, you said there was a cost of keeping them in Australia, of having these preventative measures in place as well. Are we talking about quite a vast difference in terms of this resettlement payment as opposed to that sort of ongoing payment that you would need to make to resettle them?

TONY BURKE: I won’t go further than I went to Charles’s earlier question. And just to reaffirm, the greatest cost is the cost that was incurred to the Australian community through their crimes. 

JOURNALIST: The facilities that you inspected on Nauru, what is that capacity? What is the capacity of those facilities?

TONY BURKE: There are a number of similar facilities side by side. I went to one of them. So in terms of what’s the full capacity that might be available, it would be larger than the individual dwellings that I visited.

JOURNALIST: Minister, can I sneak one more in? Just on comments that Peter Dutton made last week just regarding potential changes to citizenship stripping laws, is that something the government would consider as well? Or what do you make of those comments? 

TONY BURKE: I make of those comments – I wish just for balance there could be a question on what Peter Dutton said where I didn’t go straight to hypocrisy, but it happens with all of them. He effectively ran that argument to cover for the fact that the person he was objecting to became a citizen when he was in government. Thank you.