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November 17, 2023
STEPHEN CENATIEMPO: Senator James Paterson is the Shadow Home Affairs Minister. James, good morning.
JAMES PATERSON: Good morning.
CENATIEMPO: This legislation yesterday, the Coalition was able to make quite a number of amendments to the legislation, but it's still not a permanent fix, is it?
PATERSON: No, it's certainly not. And this has been quite a saga, Steve. I mean, a week ago we started with the government saying, look, don't worry, we're not even going to release anyone other than the applicant in the case. Then they released another 83 people. Then the government said they couldn't possibly legislate until the High Court handed down its reasons. Then they said, okay, we will legislate. Then they said, this legislation is absolutely as far as we can go, given the constitutional risk. Then they said, actually, alright, we will accept the six amendments that the Opposition has proposed. I mean it's been a total shambles from the Albanese government from start to finish.
CENATIEMPO: And it's extraordinary that they had that position that, 'oh we've got to wait for the High Court to release its reasoning', which you know, to the average person might have sounded reasonable. But then given that they introduced legislation before the reasons came out, clearly that was not right. But James, I guess what do we do in the long term here? Because the High Court has made its decision, it's deemed that the indeterminate detention of these people is unconstitutional. We need to have some something permanent, because at the moment what we're doing is and I'm led to believe there's going to be now another 300 people that could apply for release. Surely spending $180,000 a year or $180,000 a month, I think it was monitoring these people can't be a long term fix.
PATERSON: You're right. We have absolutely got to look at long term risk, particularly for the highest risk of former offenders in this cohort, because it's really important for your listeners to understand the reason why these people can't be deported from Australia is typically because the crimes they've committed are so serious that no country in the world wants to take them. And so that's why they are being indefinitely detained - not because the government wasn't trying to find places for them to go. We were, but we weren't able to, because no one would take them because in some cases we're talking about child sex offenders, murderers and very serious rapists. So you're right, a more permanent solution is necessary and one of the things that we've advocated is the government look at the high risk terrorist offender framework, which has a range of appropriate powers for high risk offenders. It includes things like preventative detention, continuing detention, extended supervision orders and control orders and that gives a range of tools to the government to either eliminate or at least manage the risk that these people pose to the community.
CENATIEMPO: And I know that it's I'm probably saying this too soon, but do we need to look at constitutional change?
PATERSON: That would be very ambitious change, because really what the court found at the heart of this case was that indefinite detention constitutes a punishment, that only the court can hand down punishment, not the government, and therefore that this was unconstitutional. So to change that, you'd be looking at a pretty radical change to our separation of powers. And realistically, I don't think that's something that should be proposed or would succeed at a referendum.
CENATIEMPO: So what does that say then? So effectively, we've got to wait for these people to commit another crime while they're out in the community and then hope that the courts do the right thing?
PATERSON: Well, the good thing about the amendments that the Coalition forced the government to accept yesterday is that if any of these people breached any of the conditions on their visas while they were in the community, it is a mandatory minimum sentence of at least one year, and they can be sentenced for up to five years. But simply for breaching their visa conditions, which includes things like a requirement to report regularly to the Department of Home Affairs, if they fail to do that it's into jail for a year. If they commit a more serious crime, then absolutely they'll be back in the criminal justice system and they could be locked away for much longer than that.
CENATIEMPO: I think what this clearly highlights is we really need to keep our borders secure.
PATERSON: Exactly right. I mean, these people, many of them who came here didn't have a valid reason to be here but because they couldn't be removed, they were stuck here and you're right, if the boats start again and boats come again, then you're going to have many more cohorts like this. And if they commit crimes here, then perversely, that's how they get to stay here. If they don't commit any crimes you often can resettle them in third countries. If they commit a minor offence, sometimes they can be resettled in a third country. But if they commit a really serious offence, in a strange way, that's a ticket to stay in Australia and that's a totally perverse outcome that no one should want to see.
CENATIEMPO: So they almost have an incentive to commit a crime?
PATERSON: Yeah, I mean, I really hope that no human being, no matter how sadistic, would think that that's a good idea. But it is the sad result of the High Court's ruling.
CENATIEMPO: Extraordinary. So, okay, now that you've put those amendments forward. Is that all that needs to be done now or do we still need to do more?
PATERSON: No, We think more needs to be done. And we have said to the government we do expect them to consider a preventative detention or continuing detention regime, at least for the highest risk former offenders in this cohort, because some of them were jailed for very long periods of time for their offences and are now out in the community. And in the ordinary course of events wouldn't be allowed to stay in Australia, they would just have their visas cancelled and be deported. So we do think the government's got to look at those options. The government is now saying they need to wait until they have the benefit of the High Court's ruling, but that might not come until January, February or March, whenever the High Court decides to hand it down. So, I really hope they are doing that work right now.
CENATIEMPO: You would hope so. James, good to talk to you this morning.
PATERSON: Thanks, Stephen.
ENDS
