March 26, 2024
GREG JENNETT: James Paterson, welcome back to Afternoon Briefing. On a day when I think it's fair to say there's a lot happening in the Home Affairs portfolio area. The government's sprinting to the line to pass these laws in the House in one day. We don't get the opportunity to ask Andrew Giles about the extent of these powers, because apparently, he doesn't do interviews, as far as we can tell. But non-citizens, they will be expected to cooperate with removal efforts and then be imprisoned potentially for at least a year, maybe up to five years, if they don't. Isn't the use of minimum sentence here exactly an affront to the High Court about which they've been warning since the NZYQ case?
JAMES PATERSON: Well, Greg, that's a fair question, and I agree, one that the Immigration Minister, the Home Affairs Minister, should be ideally placed to give an answer, too. But as you point out, they haven't fronted up anywhere today. No press conference, no interviews, no nothing. We got a perfunctory 20 minute briefing this morning where we got to ask some basic questions. Right now, we're litigating with the government whether or not there can be a short two hour hearing tonight with the department to ask questions like that and establish the constitutional validity of this scheme so that we can understand whether it should be passed now or not. This is a shockingly rushed process by the government. They've had weeks and weeks and weeks to anticipate this upcoming ruling of the High Court. They could have brought the opposition into their confidence and told us what they are thinking. But instead, a bill that they agreed to on Friday, they've now only presented to us this morning, and they want us to pass it in 36 hours.
JENNETT: Now there's a lot to get through. The explanatory memorandum, the bill. They are lengthy and quite detailed. On first blush and I do note what you're saying about short notice that you were given here. Do these laws seem to apply only to the NZYQ caseload or potentially to others?
PATERSON: It may apply to the NZYQ cohort, but it looks like it will be another separate cohort that this is primarily aimed at. There is a case of AF17 coming up in the High Court in April. That is a person who has refused to cooperate with their removal to Iran. And the question before the High Court is does their detention therefore constitute indefinite detention given their failure to cooperate? Now it's a very important case and the consequences for Australia, if the Commonwealth are to lose that case would be very serious. It appears this legislation is trying to anticipate that decision or influence that decision. We need to really understand what the interaction of that will be with the NZYQ cohort and what the implications of a ruling would be as well.
JENNETT: How does it overcome the long standing problem of a country that will not accept the return of its nationals? Iran is usually the best example.
PATERSON: So there's two problems here, Greg. There are countries that won't accept their nationals to be returned unwillingly. And there are people here in Australia who don't cooperate with authorities when they've been found to have no reasonable reason to stay here, they're not genuine refugees. So firstly, on those people, it compels them to cooperate on the pain of being jailed with a one year minimum mandatory sentence, up to five years. That gives the government an extra tool to deal with that cohort and hopefully get cooperation. Ultimately, though, we may still have the problem of those countries refusing to take some of those people back. And then what do you do? Well, we'd need a third country resettlement option.
JENNETT: Right? But there's nothing inherent in this bill that says that is a live option for this government, certainly beyond New Zealand and before it, the United States of America, they've been very few willing it to participate.
PATERSON: Exactly right, Greg and we asked this question this morning. We were given no satisfactory answer. It doesn't appear that the government has done much thinking at all about third country resettlement options, when that is the obvious potential solution here, if they're able to find a country that would agree.
JENNETT: What do you clauses such as this incredibly broad; "the Minister has a power to quote, do specified things necessary to facilitate removal or to do other things." Does that mean anything to you?
PATERSON: You're right, it is very broad, and I wish I could shed some light on that. Maybe officials will be able to assist us tonight in the inquiry, but, I mean, these are the sort of questions that ordinarily a minister would explain and answer. They are the one that gave the drafting instructions to their own department and have put forward this bill. But because of this government's, you know, allergy to transparency and openness on this issue, they're just hoping this is rushed through without any scrutiny at all.
JENNETT: Can I put you to you a criticism made of the designated removal concern country, one that I've heard around the place today is that it has shades of Donald Trump's so-called Muslim ban. As in that instance, we had proclaimed certain countries that the United States deemed to be of terrorism risk and refused visas. How is what's being, listed here as removal concern any different?
PATERSON: Well, presumably that was considered by the Labor Party's caucus committee that approved this bill last night, the cabinet that approved it yesterday and the full caucus which approved it today. And whether they're comfortable supporting a bill that has that characterisation, it's up to them to explain. What I would say is it is a legitimate public policy problem, that you have some countries that refuse to take back their own citizens. And in light of that, Australia is entitled to take steps to protect ourselves from people who can't be removed. Otherwise, you get a accumulating backlog of people who have no legal right to be here, but with whom we cannot do anything.
JENNETT: And did you ask, and did the government give you a list of proposed countries?
PATERSON: I did ask, and there was a short list of possible countries, but I want to get a full list of potentially affected countries tonight at the hearing, and I hope they will provide that answer.
JENNETT: All right. Let's switch tac now, to Chinese state actors identified for a serious cyber hack in the UK and another separately in New Zealand. In the UK's case, it was an attack on the electoral roll 40 million voters affected there. The Australian government says Australia's electoral systems were not compromised. Does that mean attacks weren't attempted in this country?
PATERSON: No, it doesn't mean that. It just means that the government is confident that our systems weren't compromised or breached by these attackers. And it is worth mentioning that an attack on another country's democratic institutions, its parliament, its electoral commission, is one of those the most malign conduct you can engage in in the cyber realm, and for the Chinese government to sponsor its actors to do that, in the case of the UK and New Zealand, is especially heinous conduct. And that's why it's important that we've joined with our allies in attributing that publicly. But it appears that the government is not willing to take the action that our allies are. Both the UK and the US have announced that they will sanction the people responsible, and we have not.
JENNETT: Yes, we've issued a press release that says this behaviour is unacceptable. So what, in your view, should go beyond that? What form of sanction?
PATERSON: Well, we passed Magnitsky sanctions in the parliament about two years ago now, and a component of those Magnitsky style sanctions is cyber sanctions. Countries which engage in offensive cyber conduct against us, or individuals, can be personally sanctioned and the government has, to their credit, eventually done so in the case of one Russian cyber hacker responsible for the Medibank attack. They've not yet done so in any instance, for a Chinese official or individual, unlike the UK and the US. And I think we should join them in that because let's remember, they joined us in sanctioning our Russian friend Alexander Ermakov, to give greater weight to our sanctions, we should help them to.
JENNETT: Final one James Paterson, it wouldn't of escaped your attention that some of the MPs targeted in the UK were members of the Inter-Parliamentary Alliance on China. You're the Australian co-chair. Would you know if you'd been targeted?
PATERSON: If there'd been a successful compromise on my device, I'm sure I would have been notified by our intelligence agencies that that had happened. It would not shock me at all if all members of parliament in Australia, IPAC members or otherwise, are targeted. But those who are vocal on these issues are especially targeted. China has a real interest in us, in our views, in potential opportunities to compromise us or, harm our advocacy. And so it is very important that there's a very constant watching brief on this.
JENNETT: Yeah. No, it's a fascinating example, particularly the New Zealand attacks to the value in, targeting a parliamentary council office, the mob that drafts laws. What is the value in that?
PATERSON: One of the things that foreign intelligence services like to anticipate is what other countries are going to do. And a good point of call as to what legislation the New Zealand Parliament might introduce is a body like that. The Chinese embassy in New Zealand would have a brief to be on top of that, and their intelligence agencies would have a brief to get those insights before they're publicly available.
JENNETT: Yeah, well, we learnt a little about it. Often we don't. But we had through this attribution announcement, James Patterson, as we said at the outset, a lot happening in your portfolio area. Thanks again for joining.
ENDS
