November 28, 2023
KIERAN GILBERT: The Shadow Home Affairs Minister James Paterson joins me, senator, you've been calling for preventative detention to be used for this group of people for three weeks now. The High Court seems to be advocating exactly what you have been suggesting. Is this a green light for the government to legislate?
JAMES PATERSON: Kieran, the High Court has just endorsed the Opposition's plan to deal with these very high risk offenders, including sex offenders, murderers, child sex abusers, the whole lot, that could have been introduced three weeks ago. The day after the High Court handed down its decision I first called on the government to introduce a preventative or continuing detention order regime. They said we couldn't possibly act until the High Court has handed down its reasons. It turns out they could have acted three weeks ago and this would have been in place by now and these people would have been off the streets. But because of their failure to act, the community has been exposed to unnecessary risk.
GILBERT: Page 25 of the reasons explicitly refers to it. So, it's not like you have to be a lawyer to read this. It says preventative detention, like in the case of a child sex offender. So, it's actually saying to legislators, this is more than okay.
PATERSON: It's not often that the High Court goes out of its way to provide advice to the Parliament about what it can and can't legislate. But in this instance, there's no ambiguity and therefore there can be no more excuses from the government. They've given us enough excuses already about why they can't act, now the test for them is do they have legislation ready to go? We know they didn't have legislation ready to go three weeks ago. It should be ready now. They should be able to introduce it into the House tomorrow. It should be able to pass the parliament this week. We will sit as long as it takes for this to be done, we'll sit as late as it takes.
GILBERT: So, next week is not good enough. You want it done now?
PATERSON: Why should we wait? The High Court's made clear this can be legislated. I assume the government has draft legislation ready to go. They just have to hit print, bring it into the chamber and we will facilitate passage.
GILBERT: So how soon would you expect that those individuals to be back behind detention?
PATERSON: Well, the first step is to legislate the scheme. And then the second step is for the government to make an application to the court for those high risk among that cohort to be immediately detained under this scheme. Now, that might take a little bit of time to lodge those claims and get that underway. But all the more reason why we shouldn't wait to legislate the scheme, why we need to get it in place right now.
GILBERT: We're talking days as opposed to weeks.
PATERSON: In the case of the legislation, it should literally be days. It could receive royal assent by Friday if the government is ready to go. And therefore the government should be ready to go start applying to the courts to get these people off the streets. I mean, these people should not be out in the community even if they have an electronic device on them or even if they're subject to a curfew. They were in immigration detention for a good reason. They should be in custody for this other good reason, too.
GILBERT: And earlier in the day, you warned about the risk that of re-offending over the summer break. But you think this can be prevented now by having that legislation in place and the respective court orders pursued?
PATERSON: Well, thank God, Kieran, there doesn't appear to have been any re-offending in the last three weeks that these people were out in the community and should not have been because the preventative detention order scheme should have been in place for that period. But let's not take any more risks with the community safety. Let's put these people behind bars now.
GILBERT: Andrew Clennell emails that he's been reporting on out of the High Court hearing, that shows that the ministers were aware that they were going to lose doesn't.
PATERSON: It's quite a shocking thing that the government conceded in May that legally there was no capacity to resettle this person and then they decided to pull out all stops seeking to resettle them. Why did they make that concession to the court, which ended up delivering this judgement that might never been delivered had this person been resettled if they'd tried earlier? It's a very puzzling thing, and I think it just exposes the Home Affairs Minister for having misled your colleague on Sky News when she first referred to legal advice, then said it wasn't legal advice, then said they were prepared when they clearly weren't prepared. I mean, it's been a shambles from start to finish.
GILBERT: So in saying that she was going to win the case, you believe that it was a case of misleading?
PATERSON: Well, I cannot understand how any department or lawyer in their right mind would have told a minister, we're going to win this case. There's no need to prepare alternatives or backup plans. This is a lay down misère. I would be deeply shocked if that was the advice that they did get. Clearly, they were trying to resettle the person, which suggests they were worried they were going to lose.
GILBERT: Shadow Home Affairs Minister James Paterson, talk to you soon.
PATERSON: Thanks, Kieran.
ENDS
