November 9, 2023
ANDY PARK: Senator James Paterson is the Opposition's spokesperson for Home Affairs. Senator, welcome back to Drive. The High Court says indefinite detention is unlawful. Do you accept that this policy is basically been used to punish people legally seeking protection?
JAMES PATERSON: No, I don't accept that at all. I accept the ruling of the High Court in relation to the constitutional matters, of course. But I don't accept that that was the policy design or intent. The purpose of this policy, which as you pointed out has been a bipartisan policy for 20 years, has been to protect the Australian community because the category of people involved are people who have committed serious crimes, who therefore would not meet the character test to remain in Australia, are not people that we would want to grant a visa to. Because as a guest in this country, it is a privilege, not a right to be here and if you commit a serious crime, including in this case a rape of a ten year old boy, then that's not the kind of person we want in Australia.
PARK: So, it's you do the crime, you serve your time. Except if you're not from this country, is that it?
PATERSON: Well, if you're an Australian citizen, you have an absolute right to be here. But if you're visiting our country, then we're allowed to attach conditions to you being here and one of them is good character and we can cancel your visa if you engage in things that don't meet the character test. And a rape of a child I think comfortably fits within that. There are 71 other people, according to the Solicitor-General in his testimony before the High Court that are also in this category, and we don't know what crimes they have committed or what other ways they have violated the character provisions of of the Migration Act. But those visas are cancelled for good reasons. Often that involves domestic violence or other violent crimes and I don't think we want those people in our community and that's why all governments have always insisted on having the right to remove a visa from someone who violates those provisions.
PARK: You say people who have committed serious offences will be released, but isn't it up to the courts to decide that? I mean, these individuals would be subject to the same rules as the rest of us. This ruling relates specifically to immigration detention and a 20 year precedent, doesn't it? I mean, it doesn't stack up.
PATERSON: Well, the High Court has just said that anyone who has been convicted of a serious crime or violated the character test, who cannot be deported because they can't deport them, for a range of reasons. It might be that they're stateless, it might be that their own country doesn't want to take them, it might be that they have a well-founded fear of persecution in their home country. But all of those people have to be released. Now, those cases, as far as I'm aware, are not going to be individually considered by the courts. The precedent that allowed their detention has been overturned and they now have to be released.
PARK: Is it really fair for Australia to be seeking out third countries for resettlement if these individuals can't find their way here? Don't we have a responsibility to manage this within our borders, our own borders.
PATERSON: Well we are now going to have to deal with this because of the decision of the High Court, there's no other choice unless other countries are willing to take them and I somehow I doubt that there'll be countries lining up to do so. What I'm calling on the Albanese government to do is to investigate all lawful options to protect the Australian community. There are other options that the government could consider. In other analogous areas of law, such as in the counter-terrorism space where high risk terrorist offenders after they have served their term imprisonment can be subject to a range of restrictions and controls. One of those is a continuing detention order if they represent an unacceptable risk to the community. But others include control orders and extended supervision orders, which are about minimising the risk to the community by requiring them to do certain things like report to a police station on a regular basis or restricting their movements. And that is an appropriate thing to put in place if those people cannot be deported or detained.
PARK: You said that this is very much been a bipartisan approach. You'd have to concede, though, this problem isn't actually of this government's making, that this is very much the coalition's legacy. I mean, what do you think the government should do to fix it?
PATERSON: Well, I've just outlined one suggestion, but what I'm really concerned about is that the government doesn't appear to have had any Plan B for this ruling. They knew that this case was coming up. They knew there was a chance that the decision would go against that bipartisan long standing policy and yet it doesn't appear that they've been ready with a back backup plan to protect the Australian community. And I'm very concerned about that because there are at least 72 people who fall into this category. But the Solicitor-General said there could be as many as 340 others affected by this decision, who may also be in that category of violent offenders or other people of undesirable character to be released in the community, and the first obligation of the Australian government is always to protect our fellow Australians and not having a plan to deal with this scenario doesn't meet that test.
PARK: Just last week the High Court threw out another coalition era law saying the minister cannot cancel the citizenship of suspected terrorists. Isn't this just further evidence that punitive approaches don't work?
PATERSON: Well, let's talk about that case. That is a case of a man called Abdul Benbrika, convicted of a very serious terrorism offence. He's a dual citizen of Algeria and Australia, and the previous government cancelled his Australian citizenship because of that terrorism offence which he was convicted of. Now he's also due to be released into the community in a number of weeks as his current continuing detention order comes up for expiry and again, one week on from that High Court decision which was widely predicted in the media in the lead up to that case, the government has outlined again no Plan B to deal with high risk terrorist offenders like that.
PARK: We will have to leave it there, Senator James Paterson is the Opposition's Spokesman for Home Affairs, appreciate your time.
PATERSON: Thank you.
ENDS
