November 10, 2023
TOM CONNELL: Shadow Home Affairs and Cyber Security Minister James Paterson. Thanks for your time. The decision first of all did it take you by surprise.
JAMES PATERSON: What was perhaps surprising about it was that the Chief Justice issued his ruling after just two days of oral arguments and the court didn't need to go away to consider it further. He said that in his judgement, there was majority of justices who agreed. But either way, when there is a High Court challenge to the constitutionality of a very significant protection for the Australian community. Governments must be prepared for the possibility that the judgement will go against them and they must have a back up plan to deal with it if that happens, because you cannot out legislate the High Court. And so it's really important that there is a Plan B in place and we've discovered this week from this government they had no Plan B and they are now scrambling to try and protect the community from potentially dangerous offenders being released.
CONNELL: So options on the table seemingly from the minister. He's saying, this is the decision that is already legal speculation that if we don't release them, we being the Australian government, we Australia, that there would be a big compensation bill to pay, and that you would be denying the High Court decision. So if that's the case, is the only option, conditions on bail, which the Minister is talking about.
PATERSON: Well, the government should have by now already investigated all lawful alternatives to this ruling and be ready to introduce in the Senate, which is sitting right now and in the House and the Senate, which is sitting next week, legislation to put in place most robust legal protections for the community that they think will withstand any future High Court challenges that might involve continuing detention orders like we have in high risk terrorism offenders. It might involve extended supervision orders or control orders, which also exist in the terrorism framework. Those are some of the options available to government. But really anything that they can do to protect the community is necessary and I just don't have confidence in the government being on top of this, because yesterday in the Senate, the Agriculture Minister Murray Watt answered a question on behalf of the Home Affairs Minister and said only the applicant in this case, just one person, would be released and none of the other 92 affected people would be released until the court handed down it's reasoning, which could be weeks or months away. Now the Immigration Minister has admitted today that's wrong and they could be released imminently.
CONNELL: Perhaps the legal advice has change. On those protections you outline, I mean, they're already there aren’t they? All those various orders, wouldn't they just be applied on a case by case basis? Someone what are you talking about that would be new, is it new legislation for a particular type of risk cohort you can outline.
PATERSON: The ones I'm talking about only relate to high risk terrorist offenders. It's a framework for terrorism offenders only.
CONNELL: Right, and that's in place now?
PATERSON: And some of these 92 people may have been convicted of terrorism offences, we don't know, but almost certainly they would have been convicted of other offences like this applicant who was convicted of a child sex offence against a ten year old boy. There will be domestic violence cases and there may be murder cases in there. There will be other violent offences, drug trafficking in there, or people who violated the character provisions of the Migration Act for other reasons.
CONNELL: I will get to character in a moment, but for all those other elements, I mean we have laws in place and if anyone, it doesn't matter if it's someone that was in immigration detention, if anyone in the community is released on that, we have protections and restrictions on bail, don't we?
PATERSON: There's a really important difference, which is an Australian citizen has an absolute right to be in this country. A guest or a visitor from overseas does not have that absolute right and we would never normally grant a visa to someone if they were convicted of a serious crime, and we would deport them if they were convicted of a serious crime.
CONNELL: But my point is around, when those people are released, we are conscious and there are provisions in place and orders so on to protect the community. We have them in place already. Are you saying new ones would be needed? New legislation within this cohort?
PATERSON: I'm saying normally this problem would be dealt with by deporting these people or putting them in the detention. Given that we can't do that, every other lawful option needs to be investigated and I don't have confidence the government has done that.
CONNELL: But if there's an Australian citizen that was convicted on the same charges as this Rohingya man, they would be released. They'd have to be released, they would have to be, and there'd be various elements in place around where they could go, what job that could get, to protect the community.
PATERSON: Not necessarily Tom, it would depend on the offence that they committed. Maybe if it's a child sex offence they would have arrangements put in place and certainly for the terrorism offence it would be. But for some of those other crimes there wouldn't be.
CONNELL: With this person there would be?
PATERSON: Not necessarily, no. I have no confidence that's the case based on the government's handling of this so far. They've said they will attach conditions to his visa, but we don't know what those details are. We don't even know what the other 92 people are convicted of or the even larger cohort, 340 people that the solicitor general referred to in the High Court may have to be released. Who are they? Where are they from? What offences that they committed? Will they have to be released too? When will they have be released? These are all questions the government hasn't answered. Where is the Immigration Minister today? Where is the Home Affairs Minister today? Why have they not fronted up to the public? Why have they not done a press conference?
CONNELL: So if you think if you think about our overall system right now, again, you have different rights as an Australian citizen versus someone else, but theoretically they still pose the same level of risk to the Australian community, if you commit this sort of offence, this is the risk you pose, would that suggests our law is not fit right now to deal with risks form even Australian citizens, because why can't we just apply if someone's at risk for this offence? here Is your restriction on your bail? Why can't that apply to these people the as it would to Australian citizens?
PATERSON: Well, I mean, the obvious difference Tom, is that you can't deport an Australian citizen and you can't detain them for not having the right visa because I don't need a visa to visit our country. Migrants, guests, in this country are in a different category. Every country in the world recognises that it is a privilege to visit your country, that it's reasonable to attach conditions to that. If those conditions are not met, it's reasonable to deport them.
CONNELL: Perhaps I was not asking clearly. I mean, so there's an Australian citizen that's committed the same offences as this Rohingya man. The Australian community knows they're allowed to stay in Australia and get released but expects there will be protections placed on them. So surely the same ones can be placed on this person or if it's another offence that happens to an Australian person?
PATERSON: I understand the point you're making, Tom. But I'm saying that visitors and guests in this country have a higher bar to meet because they don't have a right to be in this country and so we are not willing to accept the same level of risk in the community posed by a non-citizen than we are from an Australian citizen, because they are different categories of people and they have different rights.
CONNELL: Right, but that implies this sort of a level of risk we accept with an Australian and we're saying, well let's raise the bar, they're still people right?
PATERSON: Tom, a visitor and a guest in our country should only be permitted to be here if they good character. That is the reason why we have the character provisions in the Migration Act. That is why we say you cannot come to this country unless you meet those provisions and if you break those provisions, we will deport you. I think 99% of Australians would support that proposition. It's not controversial at all.
CONNELL: So, you're talking about a higher level of restrictions on someone in this situation, whatever the offence might be. I think we have bells ringing, I think you're required in the Senate.
PATERSON: Tom, thank you.
ENDS
