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November 29, 2023
ANDY PARK: Joining me now in the Parliament House studios is the Victorian Liberal Senator James Paterson, the Shadow Home Affairs Minister. Welcome back to RN Drive.
JAMES PATERSON: Thank you for having me.
PARK: You've been demanding more action from the government on this for weeks. We have the High Court's reasoning now. What do you need to see in this legislation before you support it?
PATERSON: Well, ideally, a preventative detention regime, which I've been calling for, for three weeks, including, I think when we spoke about three weeks ago about this issue, I said we should adapt it from the high risk terrorist offenders framework. I said it offers the best protection for the community because it allows people, for an application through the court, to be put behind bars to protect the community. Now, the government now has the benefit of the High Court's advice, which explicitly endorses a preventative detention regime in the hypothetical case of a child sex offender and the government has not moved on it. They should have moved on it. It should be in this bill that's before the parliament right now.
PARK: Listening to Anne Twomey this morning and that's where I form my understanding is that the Commonwealth laws, at least for preventative detention, is only at the moment applicable to people where there is a threat of terrorist attack. What crimes would you like to see included?
PATERSON: Anne Twomey is right. The high risk terrorist friends framework currently is only limited to people who have committed or are likely to commit a terrorist attack, and only a handful of people have ever been jailed under this. However, the High Court has said a similar scheme but adapted for child sex offenders would be permissible, would be lawful, it would be constitutional.
PARK: Are you worried about overreach in the sense that people may be being punished for crimes they haven't committed?
PATERSON: No, I'm not worried about that, because in the case of this cohort of 141, we know there are many people who have committed crimes who've been tried of them, who've been convicted of them and detained for them, and I believe shouldn't be in our country and would ordinarily be removed from our country, except that the crimes they've committed are so heinous that no other country in the world will take them. So, we clearly do need to have a new legislative framework to deal with these people. I thought it has always been clear that preventative or continuing detention is the best way to do that. I'm pleased that the government now concedes that, but I don't understand why they weren't ready to go. We have the benefit of the High Court's ruling. They should have had draft legislation ready to go. I don't know why they haven't introduced it today in the Parliament.
PARK: Why didn't the government have legislation ready to go? Were they so confident of an outcome that suited them?
PATERSON: All we can go on is the Home Affairs Minister's comments on Sky News on Sunday last week, where she said she had advice that the Commonwealth was likely to succeed. Now, if that is true, if that's what the advice says, I would be surprised because it's the High Court. Anything can happen and in any case, they should have be prepared for any eventuality and they clearly weren't. It's also, what we know is that they tried to remove this applicant. They tried to find another country for him to settle in. That doesn't look to me like they were actually confident of winning. So I just can't understand why the government wasn't prepared.
PARK: New South Wales has the Serious Crime Prevention Orders Act. This allows a court to consider a person's re-offending prospects. This is a state law. Crimes like murder and sex offences come under state laws. Constitutional law expert Anne Twomey said and has questioned whether the Commonwealth even has the power to make a law like this. Are you just risking more legal challenges here?
PATERSON: There's always a risk with any legislation that we pass in this area, particularly where there's a lot of legal activism as there is over migration cases, that it will be challenged in court. But the government has the benefit of the advice of not just the Solicitor General and their department and all their lawyers, but the High Court itself, who has gone out of its way to offer a pathway forward to deal with this problem. They didn't by accident say you could legislate a preventative detention regime. They've advertised that as the solution here. So if an authority no lesser than the High Court is saying it's workable, then I think we should investigate it.
PARK: It's 4:12 pm, Senator James Paterson is the Shadow Home Affairs Minister. We're talking about the Government's response to the High Court's reasons for ruling indefinite immigration detention, illegal on RN drive. You argue this morning that the High Court ruling was specific to the circumstances of the plaintiff NZYQ, who was a child sex offender and had no prospect of resettlement. But you're convinced that some of these 141 people who have been released didn't need to have been released in the first place? Just explain that to me. What do you mean?
PATERSON: I'm concerned that that's possibly the case because if you read the High Court's judgement, they're very clear. They put great weight in the fact that firstly, we have never successfully resettled a child sex offender in any third country. And secondly, that the government itself conceded on the 30th of May in its pleadings that they thought there was no reasonable prospect of resettling this person. And they found, therefore, that his detention was going to be indefinite because there was no reasonable prospect of settling them and they found that it's not permissible for the government to impose that penalty. But they're very clear that's the specific facts of his case. In this cohort of 141 people, there are people who've committed other crimes. There are also people who have failed the character test of the Migration Act, who may not, in fact, have been convicted of any crime. Now, it would be much easier to resettle those people in third countries. Therefore, their detention may not be indefinite. Therefore, it might not have been necessary for them to be released and I am concerned that the government prematurely released those people without the benefit of the High Court's ruling, which we now have.
PARK: So you think it was a knee jerk?
PATERSON: I think it was because the first answer that the first minister who was asked about this in the Senate was Murray Watt in response to a question from the Greens, and he initially said that only the applicant would be released, and that the other cohort of potentially affected people wouldn't be released until the High Court handed down its reasons. But within a few days the government started releasing those people. Initially, they said it would be confined to 92 people. It has ballooned out to 141, and they've never really adequately explained who was in this cohort and what advice they have that said they needed to be released.
PARK: I'm not a constitutional law expert, but I am curious about this understanding of a reasonable prospect of resettlement is that within one year, five years? Ten years? What is that? That seems very open to interpretation.
PATERSON: I think that's a fair observation, and I don't think that really has been adequately established by this case either. And so reasonable minds, legal minds could differ on that. But the High Court has also said in their ruling that if someone has been released from detention because there was no reasonable prospect of them being resettled, then a reasonable prospect of resettlement arrives, they can be detained pending their deportation. So, it does leave open the option to the government if they have inadvertently released people, they could detain them.
PARK: But they're also just back in somewhat indefinite detention, if that's the case.
PATERSON: Well, they can only detain them if there's a prospect of resettlement. Otherwise, it is indefinite, and they cannot be detained, that is clear.
PARK: The Home Affairs Minister Clare O'Neil, has introduced legislation into Parliament today which allows court to order to someone's Australian citizenship to end if they are convicted of a serious crime ranging from terrorism to espionage. Will you be supporting this bill?
PATERSON: We're supportive of the concept of the bill. We agree that it should be extended to espionage and foreign interference as it is. And we agree it needs to be dealt with because the High Court has prevented a minister from stripping a citizenship from someone. But we are concerned on the draft that we've seen so far that it does not apply to the historic terrorism caseload in this country, where as with the terrorist that we have, including Benbrika, who was the test case for this decision by the High Court. So if the legislation doesn't deal with people like that, then Benbrika, who committed very serious terrorist offences and was jailed for them, is now free to go about in the community as an Australian citizen without his citizenship being removed, unless he then goes and commits another terrorist offence. And we think that the law should deal with those people and we want to examine how we can do that.
PARK: So, you're not confident that this is High Court proof yet?
PATERSON: Not at this stage and we think this should be sent to the Parliamentary Joint Committee on Intelligence and Security for inquiry. That's the orthodox way of dealing with legislation like this. The government has so far refused to do that. But when these laws were first introduced, they were subject to extensive inquiry by the PJCS, and I think it would be appropriate for them to be again.
PARK: We'll have to leave it there. Senator James Paterson is the Shadow Home Affairs Minister. Do appreciate your time.
ENDS
