November 17, 2023
TOM CONNELL: Now joining me, Shadow Home Affairs Minister James Paterson. Thanks for your time, so what you agreed to with Labor and obviously you moved a lot of amendments, would you say right now with the current settings you're satisfied the Australian community is safe?
JAMES PATERSON: It's an important start, Tom, but it's not a complete solution to this problem. It is much better than it would have been if the government hadn't agreed to our amendments, and it is good that the government finally agreed to do this legislation. You might remember when we were discussing this last week, at that point the government was saying they couldn't possibly legislate at all until the High Court handed down its reasons, and that contradictory position fell under the weight of its own lack of logic. So I'm pleased that the government has caved in two respects, but I do think there will need to be some additional protections and particularly we're asking the government to look at the high risk terrorist offenders framework and whether or not preventative detention, continuing detention and extended supervision orders and control orders can be applied at the very least to the high risk offenders and former offenders in this cohort.
CONNELL: Okay. So, offenders where, I guess, they're doing something akin to when we're having Australian citizen released around rape, murder, there's monitoring of them and for now that's satisfactory. Your bigger concern is people with a security assessment so people that may carry out a terror attack. To be to be blunt about it, to not beat around the bush. When you say detention, isn't that against what the High Court has said, that people can't be detained indefinitely? When or how could that apply?
PATERSON: What the High Court has said is that the government does not have the power to indefinitely detain someone, and that's not what I'm proposing. What I'm proposing is we use the judicial system as we do with high risk terrorist offenders, to apply to a court, to get the court to agree to conditions either to control the people in the community or in extreme circumstances when they pose a real risk, to detain them.
CONNELL: That's not so much new laws, but that's using the existing system and that sort of thing is usually when they pose a real and current threat, essentially that's the bar set for that.
PATERSON: Yeah, so the philosophy behind the high risk terrorist offenders framework is that some of these people cannot be rehabilitated. So even after their terms of conviction expire for the crime that they have been charged and successfully convicted of, it may be necessary to detain some of them on an ongoing basis because the threat they pose to the community is so unacceptable.
CONNELL: Okay. So the current settings in place right now, they're acceptable as long as authorities and or the government are looking at that very highest level however many number that might be in there to make sure that security element is upheld?
PATERSON: No, we still think legislative change is necessary because the high risk terrorist offenders framework only applies to terrorist offenders. So if there are any of those in this cohort, and we still don't have the full details of the crimes as people have been convicted of or other reasons why their visas been cancelled, what we're saying is that's a good starting basis to look to modify that framework and apply it to this cohort on the basis of risk and see what additional measures can be put in place to protect the community.
CONNELL: So it would be on risk, so the difference would be at the moment there has to be an offence initially and then a risk, in this case just the risk, no previous offences?
PATERSON: No, I mean, these people have committed previous offences, many of them have committed previous offences.
CONNELL: Terror offences, not necessarily?
PATERSON: Not necessarily, although through an order of production of documents, we did obtain a document from the government this week that says that at least two of the offenders were subject to what are called qualified security assessments, which means an agency has assessed them on the basis of a national security risk and there is suggestion that they might pose a risk, and there is another offender who had previously had an adverse security assessment and a qualified security assessment, and that was subsequently cleared. So we do believe there is some national security risk in this cohort. And I trust and I hope the government is applying all of the available powers to those people.
CONNELL: Is it important to respect the High Court decision and do something that is in keeping with the law in the Spirit of it?
PATERSON: Of course it is, because we are not in a position to defy an order of the High Court and no one is suggesting that they should do that. What we are suggesting is the government should explore all lawful options to respond to this decision.
CONNELL: And if we did something that was akin to it and that gets knocked out in a year, that's not the best approach you need to take what the decision is and even though you still want the ability to detain those high risk offenders, again, respecting that decision?
PATERSON: There may even be some constitutional risk with the reforms that passed the Parliament last night. But I think the possibility, there's always constitutional risk, when we legislate. It's just a spectrum of constitutional risk from very low to very high and I think, the foremost consideration must be protection of the community. We must have to tolerate some level of constitutional risk, but we should seek to minimise it.
CONNELL: You've spoken about ongoing risk and the rest of the cohort, the 340 people or so. The information we're getting from the government is they're not criminals, there's no offences there. They're being held indefinitely because they can't be sent back though. is it fair enough that they wouldn't have these draconian measures on them?
PATERSON: Well, we don't yet know whether these people are going to be released into the community and if it's 340 people who can't be sent back because they have a well-founded fear of persecution, then they should be eligible for a third country resettlement. The reason why the 92 potentially need to be released and 84 of them have been so far is not only because their own country won't take them back, but also they can't be resettled in a third country because they're undesirable, because that breach the character provisions of the migration law.
CONNELL: So, you would want an explanation around those 340?
PATERSON: What I want to understand is why can't they be resettled if there is no security risk? If there's no character concerns, why can't they be resettled? The High Court has said it's only indefinite detention if there's no reasonable prospect of resettlement, they can be detained until they resettle otherwise.
CONNELL: Okay. But if there's no risk, if there's no previous conviction, whatever happens to them would be fair enough not to put on pretty draconian measures, anklet, bracelets and curfews if they haven't committed previous offences, that would be overkill.
PATERSON: Well, I'd really want to understand exactly what the nature of this cohort is. And I'm not just going to accept at face value what the government says about this, given that they also said they were only going to release the plaintiff, and not anyone else before the High Court's reasons were handed down. And they also said they'd gone as far as I could possibly go constitutionally with their reforms until they subsequently agreed to our six amendments, which significantly toughened it. So you've got to test sometimes with this government whether their first answer is real, truthful answer, where they can be challenged.
CONNELL: On those that will be able to have those placed on them, because it's not every single person, it's a case by case, from what I understand, is that your understanding as well, that of the 84, 85, that it's not automatic, but the minister will have the power to have that monitoring of them?
PATERSON: It depends what you're talking about, Tom. In the case of the electronic monitoring, we proposed that it should be mandatory. The government then went away and got legal advice and drafted an amendment which said that if it was mandatory, that might fall afoul of the High Court's decision, it might be akin to punishment. And so they have instead inserted a presumption that it should be assumed that they will have electronic monitoring unless the minister makes a judgement that that person does not pose a risk to the community. Now, that's a very high bar that the minister has to meet and our expectation is, all of them, if not almost all of them, would have that monitoring applied.
CONNELL: Ok, initially, and is it fair enough as well to have scope for that to be removed though? If someone ends up being here forever I mean, they might be released at thirty. They're not going to be the same risk at 78 are they? Is that fair enough that that's not a set and forget proposition?
PATERSON: It would depend on the nature of their offence and when they were convicted of it and how they behave afterwards. In the case of some offences like child sex offences, people can re-offend much later in life and age is not a determinant of safety of them.
CONNELL: Right, but it's not automatic set and forget is the point, and that makes sense? People do change. We would hope for rehabilitation, whatever it might be and they might be here forever.
PATERSON: I would be more comfortable contemplating things like that Tom if and when the government has put in place a more robust solution to this problem with options like preventative and continuing detention.
CONNELL: Okay. Very finally, briefly Optus CEO, is she fit for the job?
PATERSON: It's not a question for politicians to decide. It's really a matter for the Optus board and ultimately their parent company, Singtel. But I haven't been impressed with the way Optus has handled it, including the CEO.
CONNELL: Backbenches sort of swinging for the fences on those, but you're a bit more responsible they days.
PATERSON: Maybe.
CONNELL: Senator Paterson, thank you.
ENDS
