Home Affairs Minister Tony Burke has conceded the incredibly high threshold on a preventative detention regime for criminal former immigration detainees means it鈥檚 possible none will ever be locked up under it.
But he says his preference is to remove them from the country as soon as possible anyway.
The minister鈥檚 comments come after Victorian police last week charged Yarraville man Lominja Friday Yokoju over a fatal assault in Melbourne.
Mr Yokoju was among the group of immigration detainees known as the NZYQ cohort released from the Yonga Hill centre in 2023 after the High Court ruled that keeping non-citizens locked up indefinitely when they couldn鈥檛 be deported was unconstitutional.
He is due to face court again in October over the alleged murder.
Mr Burke鈥檚 ministerial predecessor rushed preventative detention laws through Parliament in December 2023 to establish a regime where those in the NZYQ cohort deemed a danger to the broader community could be subject to a 鈥渃ommunity safety detention order鈥.
However, more than 18 months later, no such orders have been issued.
鈥淭he reality is, the legal thresholds that we are stuck with because of some decisions of the High Court are more difficult to be able to reach than I want them to be,鈥 Mr Burke told Sky News on Sunday.
鈥淚鈥檝e got a lot of resources that I鈥檝e dedicated to this. No one has come close to reaching the threshold that is in that legislation.
鈥淪o I鈥檓 not giving up. I鈥檓 going to keep doing it, but I鈥檒l tell you, to be honest, I would much prefer the individuals out of the country altogether.鈥
Mr Burke passed laws last year enabling Australia to pay third countries to take non-citizens it wants to deport, where it鈥檚 not possible to return to their home country.
The first three visas under that plan are currently being challenged through the High Court.
鈥淎s they go through the High Court, we鈥檝e been winning the (other NZYQ-related) cases, which I鈥檝e been really happy about, which is giving me more confidence that we鈥檙e going to be able to start getting these people offshore,鈥 Mr Burke said.
鈥淢y view is this: if you鈥檙e on a visa, you are a guest in the country. And almost everybody who is a guest in Australia is a good guest, and a whole lot of them end up calling Australia home and becoming Australian citizens, and that鈥檚 a great thing.
鈥淏ut for people who breach that trust, you鈥檙e entitled as a nation to say, well, your visa is cancelled and it鈥檚 time for you to leave.鈥
Shadow defence minister Angus Taylor said it was 鈥渁n imperative鈥 that the Government keep dangerous people off the streets.
鈥淭he job for Tony Burke is to make sure that he is able to do that鈥 We鈥檒l do whatever we have to do support that, but we鈥檒l also hold him to account on making sure he achieves that,鈥 he said.