November 9, 2023
RAY HADLEY: This case, where the high court has ruled locking people in immigration detention indefinitely illegal in a decision that overturns a 20 year old precedent and could lead to the release of dozens of stateless detainees. Now, the one I'm concerned about is the plaintiff in this matter, the pseudonym NZYQ The visa was cancelled because he's a convicted child sex offender. He raped a ten year old boy. His legal team argue it was unconstitutional for the Commonwealth to continue to hold this person. What happened? They've served their sentence for the rape. They come from Myanmar, but they're not recognised as a citizen there because they're in a persecuted group. So you're not a citizen of Myanmar and it's not able to obtain that citizenship. So he's stateless, and the High Court determined that if you're stateless, you can't be held in detention, immigration detention, even if you're a paedophile and that's the obscurity of the High Court. They argue legal matters. They don't care whether Bloke is a paedophile. They argue his right to be held in detention or not to be held in detention. Now I didn't raise it with Peter Dutton because I knew I'd be talking to the Shadow Home Affairs Minister, Senator James Paterson is online. Senator, good morning to you.
JAMES PATERSON: Great to be with you Ray.
HADLEY: And I know that I might be drawing a long bow about the voice, but the point I'm trying to make is you never know what the high Court's going to do and when I read this last night, I couldn't quite believe that, they've said a paedophile who raped the ten year old child should be freed into the community.
PATERSON: Ray, you're absolutely right. This is an enormously significant decision by the High Court, which has attracted very little media coverage. I think most Australians will be shocked to know that someone who's not a citizen of our country, who does not have a valid visa, who has no right to be here, who's committed a serious sexual crime against a child, is now going to be released into the community. And not only this person but the Solicitor-General, who's the top lawyer of the Commonwealth, said in the High Court this week that there are 92 people at least, who are in the same category, who've also committed serious crimes or had their visas cancelled on character grounds and up to 340 other people who potentially also now have to be released into the community, that is a frightening prospect.
HADLEY: So the 92 you refer to, have they all been convicted of some crime or they actually committed crimes elsewhere and been determined not of character to stay here?
PATERSON: Well, it's in both of those categories, but we just don't have the details and that's another unfortunate thing, Ray, which we will be asking the government to come clean about: What crimes have these people committed? What other reasons have their visas been cancelled on character grounds? And what is your plan to protect the community if these people now have to be released as a result of the High Court's decision?
HADLEY: Now, with the recent decision that the terrorist Benbrika can remain an Australian citizen after Peter Dutton stripped him of citizenship, that's another one out of left field and he's still in jail. But eventually he'll get out, and he will be an Australian citizen as opposed to a citizen of Algeria, I believe. But the problem is this. The government would be now expected to do something through legislation to somehow usurp the rule of the High Court. Is that easy or is that impossible?
PATERSON: Well, you would think that the government would have had a plan ready to go in both of these cases. It's now more than a week since Benbrika won his case, and we've heard nothing from the government about their plan to remedy that decision to protect the Australian community. He could be out in a number of weeks. He's a serious convicted terrorist and in this case it was always a risk that the High Court would make this decision. The government should have had a plan B ready to go. The Senate is sitting today. The Opposition would have facilitated passage of any bill to remedy this and to protect the Australian community. But we've heard nothing from the government. Now there is still time. The Parliament sits next week as well. But I am not confident, given we've heard nothing from the government at all, that they have a plan to deal with this.
HADLEY: Well, you wouldn't think you could pull something together in a week. I mean, it's a complicated process to try and come up with legislation that would usurp the High Court.
PATERSON: Well, that's true, Ray. But these cases have been on the books for a long time. The Commonwealth's been preparing to argue these cases, there's always a risk they were going to lose. They should have had a plan B ready to go. They should have been ready today to do something to protect the community, because otherwise these people are going to be released onto the streets without any restrictions on their movements. And that is a frightening prospect for Australians.
HADLEY: And you're trying to ascertain what the other 91, apart from the paedophile have been convicted of or why their application to stay here has been revoked or not renewed or taken from them?
PATERSON: That's exactly right. But let me say for your listeners, those visas are not cancelled lightly. They are cancelled when very serious incidents occur, like family violence, like violent crime, like child sex offences. So these are not people that you want to have roaming around the streets. But the High Court has now found there is really nothing that we can do with them. They can't be deported, they can't be incarcerated and therefore they have to be released because the government's got no plan.
HADLEY: So this bloke comes from Myanmar and he's part of a persecuted group, so he's not a citizen of Myanmar. But are the others all stateless of all the other 91, are they not, not known to other areas? And what areas are we talking about?
PATERSON: All we know is that for some reason their country of origin won't accept them back. It might be because of their citizenship status. It might be because they're from a persecuted minority. Or it might be for another reason, perhaps because they've been convicted of a serious offence in Australia. But for some reason their country of origin doesn't want to accept them back. So we can't deport them there, but we also can't continue to incarcerate them here, even though we think they pose a risk to the community and that's why we've cancelled their visas. They are not citizens, they don't have a right to be here and they've committed a serious crime or violated the character provisions of the Migration Act.
HADLEY: I know, you know, it's a difficult thing to be critical of a high court because that's the last bastion of, you know, where we go to. Unless the government in concert with you, you know, changes legislation. But this I mean, the people listening now, the average punter listening to this now says, well, hang on a sec. So the bloke raped a ten year old child, he's not a citizen of Myanmar, so we can't send him back there. But we're going to let him out of jail, which he's out, I believe, and in detention. And he's going to be free to roam the community, roam the community with no restrictions on him and that would be not passing the pub test. I know that the high court would say, well, look, we examine the Constitution, we do it legally, and that's the argument we present. But it doesn't pass the pub test that these people sitting in the High Court say, yeah, hunky dory will let out the terrorist, they can come back, they'll be an Australian citizen, old mate Benbrika and this unnamed paedophile, he's right to go into the community as well. I mean where's the protection for those who are Australian citizens.
PATERSON: That's right, Ray. I'm incredibly concerned about the implications of this decision and there's nothing I can do to change the way the High Court has interpreted the Constitution. But the Parliament does have other options available to them and I'm hoping the government right now is considering every lawful option available to protect the community from these people. In other areas of law, in other contexts, like in terrorism, we have tools like continuing detention orders and control orders which can be imposed to protect the community, if the prosecution believes that those people continue to represent a risk to the community, and I suspect every one of those people falls in that category too.
HADLEY: Well, at least Benbrika, when he gets out and you say it will be before Christmas I think, at least we know who he is. The other bloke NZYQ. I mean, we don't know who he is. He could be living in a community when he's released from detention, near a school. He could be anyway.
PATERSON: No, we don't know his identity or the identity of the other 91 people. We don't even know their nationality or what crimes they've been convicted of or what other violations of the Migration Act they've committed and all of them could be on the streets within a matter of days because the government has not been prepared for this decision, does not have a plan B and is not taking the action they need to to protect Australia. I mean, this is consistent from this government on national security that is far too slow to act. I mean, we know it took them almost a week to call the National Security Committee of Cabinet meeting after Hamas' attacks on Israel. You know, they were slow responding to the first Optus cyber attack, it was days before they said anything. They were the last Western government in the world to ban Tik Tok from government devices. I mean, this is a very consistent pattern of behaviour. They're just not up to the task on national security.
HADLEY: Well, It's today is confined to a page eight of the Sydney Morning Herald it's not reported in any of the other major news publications, nor is it carried on TV, news, radio, news or anywhere else. But I think it's one of the more important decisions of the High Court made along with Benbrika in recent memory.
PATERSON: I completely agree, Ray. Although you will note that the refugee lobby and the human rights lobby are out there celebrating. They are saying this is an absolutely totemic change that puts into question Australia's detention regime for illegal migrants. And they're right. They recognise the significance of this and we should recognise the significance of it too.
HADLEY: Well, how can you clink, clink the shady glasses when a paedophile’s out, I mean, I don't understand it, you know, I really don't. I just don't understand, you know, people celebrating the release of a paedophile in the community. It's, it's beyond my comprehension.
PATERSON: Yours and mine, too.
HADLEY: Okay, Thanks, as always, James talk soon.
PATERSON: Thanks Ray.
ENDS
