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November 19, 2023
DAVID SPEERS: Senator Paterson welcome to the program.
JAMES PATERSON: Good morning, David.
SPEERS: So, let's just start by clearing this up Peter Dutton says we heard repeatedly these people should go back into immigration detention. You've argued indefinite immigration detention is not the solution. Why?
PATERSON: David, when the High Court handed down its decision on Wednesday last week, the Senate was sitting and I gave my first media interview about this on Thursday, and I said the government should be ready with legislation to introduce in the Senate and it should consider the high risk terrorist offenders regime as a possible solution to this problem. That includes things like preventative detention orders, continuing detention orders, extended supervision orders and control orders, and the government was not ready and they did not do that. Those could have been used to detain, at the very least, the highest risk among this cohort of now 93 people, which, by the way, the government has not explained. The Solicitor-General told the High Court there were 92 people who needed to be immediately released. We've now hit 93 and the question is open, have we started to move into that cohort of 340? Who are they? What offences have they committed and when and where were they released into the community?
SPEERS: They're all interesting questions, but can I come back to the one I asked you? Peter Dutton is saying put them back in immigration detention. Is that possible?
PATERSON: Well, David, we're the Opposition and we've tried to be constructive about this. We tried to suggest a range of options of dealing with this, including, as I said, the high risk terrorist offenders framework, which critically would allow the government to apply to a court, for a court to detain someone on the basis of the risk that they pose to the community. It's a well accepted and well tested area of law that could be applied at the very least to the highest risk offenders in this cohort. The government doesn't appear willing to test that, at least not until they have the High Court's advice. But in the meantime, we've got people out in the community who may pose a risk to the community. I think that's very unfortunate.
SPEERS: But just one more time when Peter Dutton says putting them back in immigration detention, are you saying that's impossible?
PATERSON: No, David, I'm saying that the government should investigate all lawful options. We've all been really clear about this.
SPEERS: But is immigration detention one of them? You, yourself have said, that they cannot go back into indefinite immigration detention.
PATERSON: David, we're the Opposition were trying to be constructive about this. We don't have the benefit of the legal advice the government does. But what we're saying is they need to look at all lawful options and I think it's very clear that they haven't done that. It's very clear they were caught on the hop when the High Court handed down its ruling on Wednesday. It's very clear that they didn't have legislation ready to be introduced to the Senate, which is sitting which could have passed on Thursday of last week and could have been introduced into the House on Monday of this week. And this all could have been avoided.
SPEERS: So, let's look at your idea then of preventative detention. I think you just said for the highest risk offenders. So, you're not saying everybody locked up. How would it work, what you're suggesting?
PATERSON: Well, we have a very mature high risk terrorist offenders framework in this country which recognises that some types of offenders, including terrorist offenders, are not able to be easily rehabilitated in prison and do propose a continuing risk to the community if they are released after the end of their custodial sentences. And so the police can apply through the courts for them to be detained on a continuing basis. They can even apply to the courts to have them detained preventively before they are convicted and this offers the community some measure of protection that they are not out in the community and can't cause harm to the community. And I really think the government should be looking at that as an option because for at least some of this cohort we know, they are very serious violent offenders. I mean, in the government's own words, in a document that we obtained through an order of production of documents in the Senate, which was handed to the court a month ago, they described these offenders as very serious offenders and ranging from sexual crimes, to murder, to child sex abuses. This really should have been considered well before the court handed down its decision.
SPEERS: And this new regime that you're suggesting here, a preventative detention regime would it only apply to those on these, what are they called removal pending visas that have now been set up. Or would it more broadly apply to all non-citizens?
PATERSON: Well, I think this is a special cohort because they normally would be detained and the only reason that they're not detained is that there's no reasonable prospect of them being either sent back to the country that they originally came from or being resettled in a third country. And that's important - it's either because they are stateless, it's either because they do have a well-founded fear of persecution back in their home country, and it is often because no third country will take them because of the severity of the crimes that they have committed. So ordinarily they would be removed from the country, their visa would be cancelled, they would be deported, or they would remain in detention. Because that's not an option I think we do have to look at measures like this.
SPEERS: And just to clear up what has passed through the parliament the other day, this question about ministerial discretion for the ankle bracelets and the curfews and so on. What's your understanding of how much discretion there is?
PATERSON: David, we proposed six amendments to the government, which they accepted in principle, and it was our intention that most, if not all, of these conditions would be mandatory. The government came back to us after receiving legal advice and they say that would be problematic and it would risk the validity of these laws. So instead, what they have introduced in their amendments, which they drafted for the Opposition, was a presumption, a presumption that these measures do apply unless the Minister believes these people do not pose a risk to the community. Now that's a pretty high bar. You have to be convinced that there is no risk to the community if you are to not impose, for example, an electronic bracelet or a curfew and so it's my expectation that all or almost all of those offenders will have these conditions applied to them.
SPEERS: Even those who may not have been convicted of an offence?
PATERSON: Well, the government will be in possession of a range of information in relation to these detainees. Let me tell you, these visas are not cancelled without good reason. It's because they've either committed a crime or they violated the character visions of the Migration Act and so they all do pose a degree of risk. But of course, some are more risky than others and only the Minister is in possession of that information. It's not something that they're sharing with the opposition or the public and so they have to make that decision and the burden falls on them.
SPEERS: Look, let's turn to the incident between HMAS Toowoomba and a Chinese vessel in international waters off Japan. As we mentioned, some Australian Navy personnel have been left with minor injuries. You said yesterday this is not the actions of a friend. How then would you describe China, if not a friend?
PATERSON: Well, it's certainly a strategic competitor. I agree with the Biden administration's assessment of that. And the actions that we have seen this week are totally contrary to the spirit of friendship that we saw in the Great Hall of the People when the Prime Minister was in Beijing only a few weeks ago. I think when it comes to our very complex and important bilateral relationship with the People's Republic of China, that we really have to look at the actions of the Chinese government, not just their words. It's very easy to get caught up in the platitudes, and the praise, the ‘handsome boy’ rhetoric when the Prime Minister was in Beijing. But actually, it's pretty fundamental things like this, which was an active decision by the People's Liberation Army-Navy to put Australian Navy personnel in harm's way and cause harm to them, that we should be really judging the Chinese government by.
SPEERS: So what should happen? Serious concerns have been expressed government to government. Is that enough?
PATERSON: Well, the first and most important thing, David, is we have to understand whether or not the Prime Minister raised this with Xi Jinping or Wang Yi when he met with them at APEC in San Francisco. He's boasted about the length and the depth of the conversations that they had when he met them there. He would have known before he left Australia that this incident has occurred. The question for the Prime Minister to answer today, now that he's back in the country, is did he raise this and take this up on behalf of the Australian people and our Navy personnel? I mean, this is a serious incident. Harm has been caused. Injuries have been a caused to Australian Navy personnel in what appears to be a deliberate act by the Chinese Navy.
SPEERS: Do you accept, the government points out it takes some days for the checks and balances to be absolutely clear, this is what happened under the Morrison government when a Chinese warship targeted a laser beam into an Australian surveillance vessel, it was five days before that could be cleared and announced.
PATERSON: I guess David is possibly just a coincidence that the government waited until Saturday morning after the Prime Minister had done his press conference at APEC and after he boarded his plane back home to Australia, that they decided to publicly release this information online. It's up to them to explain. But the most important thing is the Prime Minister did know while he was in San Francisco, so did he raise it to Xi Jinping or did he not?
SPEERS: Let's turn to the war in Israel and Gaza. You are a staunch supporter of Israel. Is that support unqualified, unconditional or what sort of limits or guardrails should there be around how far Israel can go?
PATERSON: David I support Israel because Israel is a liberal democracy. And I've said all throughout this conflict that we expect Israel to behave as a liberal democracy. But let's not forget the assault that happened on Israel on the 7th of October. If that happened here in Australia in per capita terms, it would be about 3000 Australians that lost their lives. How would we expect our government to respond if we were on the receiving end of an attack like that? Hamas has said that they intend to repeat the events of 7th October again and again and again. That is their political and military objective and so I think it's completely understandable that the state of Israel doesn't want to live with that existential risk and wants to remove Hamas as a military threat to its people.
SPEERS: But does that mean Israel needs to follow international law?
PATERSON: Of course, all nations, all parties to conflict have to follow the international rules of conflict, David.
SPEERS: And you're confident the Israel is?
PATERSON: It's not easy for me to judge from 12,000km away and in the fog of war. There's been a lot of misinformation, including that early on in the conflict when Hamas claimed and the many in the media, including the ABC, reported that Israel had bombed a hospital. It later emerged that it was a Palestinian Islamic Jihad rocket which had misfired and fallen on the hospital. So, I think we do need to be careful about casting judgement from this far away in the middle of a conflict.
SPEERS: So, does that mean you're not willing to cast judgement on whether it's following international law?
PATERSON: Judgement will be cast David, but it will be casted after this conflict is over and through the normal appropriate processes of international law as it should be.
SPEERS: What about the rights of the people of Gaza, the civilians in Gaza? What rights do you think they have?
PATERSON: Well, they have a right not to be treated by Hamas as human shields. They have a right not to be held as hostages by Hamas. It's not just 239 Israelis. It's 2 million Gazans who've been used by Hamas as hostages in their conflict. They deliberately burrow themselves in civilian infrastructure, including apartments, including schools, including hospitals, including refugee camps and they use those civilians, both as a human shield to protect them, but also as a propaganda weapon against Israel when inevitably civilian casualties occur. So, Israel must do everything it can to minimise those civilian casualties. But Hamas has options here, too David. The war would end tomorrow if Hamas released those captives. The war would end tomorrow, if the Hamas leadership gave up.
SPEERS: Do you really think the war would end tomorrow if they released the hostages?
PATERSON: I've lost audio here. I'm sorry.
SPEERS: I think we do have an audio problem. Apologies here, we’ve lost the Senator.
ENDS
