Burke signs $400m deal to deport hundreds of former detainees to Nauru

Home Affairs Minister Tony Burke has quietly visited Nauru to sign a $400 million deal that will allow the federal government to start deporting hundreds of foreign-born criminals to the Pacific Island nation.

Burke’s office uploaded a statement to the Home Affairs website on Friday afternoon to say the minister had met with Nauru President David Adeang, his cabinet and the nation’s parliament to sign a memorandum of understanding that Nauru would take members of the NZYQ cohort.

That refers to more than 350 people – including convicted murderers and paedophiles who either refuse or cannot be deported to their country of origin – released into the community since the High Court ruled in November 2023 that indefinite immigration detention was unlawful.

A transcript from the Nauru parliament’s session on Friday, seen by this masthead, reveals Australia committed an upfront $408 million to Nauru, and will keep paying about $70 million each year to cover the ongoing costs of resettlement. The agreement will be activated once the first people arrive in Nauru, Adeang told the parliament on Friday.

Friday’s deal comes days after Burke quietly introduced laws to strip those people of natural justice when the government tries to deport them to a third country, such as Nauru.

That Burke was on the cusp of an agreement with Nauru gives context to Tuesday’s unexpected new laws, as they will remove the hurdle of procedural fairness when the government seeks to deport large numbers of people. Labor’s attempts to deport three people from the NZYQ cohort to Nauru have so far stalled due to court challenges.

“Procedural fairness is a fundamental principle in many areas of decision-making. However, these provisions can and are being used by non-citizens to delay and frustrate their removal,” Burke told parliament on Tuesday.

In a statement attributed to the minister on Friday, he said: “Anyone who doesn’t have a valid visa should leave the country. This is a fundamental element of a functioning visa system.”

Burke was given the sensitive Home Affairs portfolio last year, tasked with neutralising the political attacks that had plagued the Albanese government since the NZYQ case.

Earlier this month, Burke told this masthead that his approach to national security would be to retain Coalition-era toughness without emphasising anti-immigration rhetoric. Asylum seeker issues were given public prominence under the Coalition, compared to Burke’s discreet approach on Friday, where a brief statement was uploaded without fanfare.

But Greens senator David Shoebridge blasted the government. “Minister Burke dumping this on a Friday when no one is looking shows the government knows this is cruel and unfair,” he said.

“At a time when we should be building partnerships in the Pacific based on equality and respect, the government is instead forcing our smaller neighbours to become 21st-century prison colonies.”

Shoebridge said Labor was seeking to “condemn far-right, anti-migration hatred on one hand, while forcing through some of the world’s most anti-migrant policies on the other”.

The United Nations Human Rights Committee has also issued a non-binding order for the federal government to stop one of the deportations while it investigates the human rights implications of the man’s case.

The man’s lawyers argue that the federal government has international legal responsibilities not to deport people to countries where they could face death or cruel, inhuman or degrading treatment. Refugees and people transferred to Nauru have experienced violence in the past.

But the federal government’s latest deal with Nauru suggests it is trying to get around these arguments.

“It [the memorandum of understanding] contains undertakings for the proper treatment and long-term residence of people who have no legal right to stay in Australia, to be received in Nauru,” the statement on the Home Affairs website said.

“Australia will provide funding to underpin this arrangement and support Nauru’s long-term economic resilience. In announcing the MOU, the president and minister referred to further long-term visas to be granted by Nauru to people who no longer have a legal right to remain in Australia.”

Adeang told his parliament that the $408 million payment would be distributed to the Nauru Trust Fund to support the country’s “long-term economic resilience” and execute the agreement based on how many people are deported.

The payment comes on top of a $100 million treaty signed between the two countries last year, and is separate to funding Australia gives Nauru to run its offshore detention regime. According to Amnesty International, there were about 100 people in the Nauru detention centre at the start of this year.

Labor has struggled to contain the fallout from the High Court’s NZYQ decision, which was politically damaging for the government. The saga was weaponised by Peter Dutton as opposition leader and led ministers Clare O’Neil and Andrew Giles to be moved out of their portfolios.

Several people in the cohort have gone on to commit other serious offences in the community, and one man was charged over a murder in Melbourne in June.

The government first responded to the High Court’s ruling by imposing curfews and electronic monitoring, but the High Court eventually ruled that was also unconstitutional.

Burke’s most recent package of laws – allowing Australia to pay third countries to take the former detainees, put them back into detention once another country agreed to take them, and jail people who did not co-operate for up to five years – passed with the Coalition’s support last year.

The agreement with Nauru on Friday raises the prospect that people could be sent back to detention.

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