Subjects: Legislation covering NZYQ cohort released from immigration detention, High Court's decision and preventative detention.
PATRICIA KARVELAS: It, the government will move to pass new laws redetaining some of the 141 people released by a High Court decision that has sent Parliament into a spin. Yesterday, the High Court published its full reasons for the judgement which leaves the door open to preventative detention. Clare O'Neil is the Minister for Home Affairs and she joined me a short time ago. Minister, welcome back to RN breakfast.
CLARE O'NEIL: Thanks for having me.
PATRICIA KARVELAS: The High Court reasoning doesn't preclude the government from introducing preventative detention. How many of the more than 100 of 140 people released will you put back into detention?
CLARE O'NEIL: The most important thing to understand from the High Court's ruling is that the High Court has said that politicians don't get to make that decision. And so politicians have previously been allowed to hold people in immigration detention for very long periods of time. The High Court has told us that that's not constitutional under these circumstances. The job now for the Parliament is to create a preventative detention regime that is constitutional. That is going to mean that we need to refer those powers to courts. Now, we have just over a week of Parliament left. We are not leaving here until a preventative detention regime is in place. To do that, we are going to need Peter Dutton and the Liberals to work with us. They are very good at saying no. Now is the time to come into the Parliament to work with the government to help keep the community safe.
PATRICIA KARVELAS: Preventative detention is currently reserved for terrorists and terrorist suspects. What other crimes will it now be subjected to?
CLARE O'NEIL: We will work through that over the coming days, Patricia. What's really important is that the High Court has left space for the Parliament to legislate to get the most dangerous offenders off the streets, and that is the Government's goal here. Our single minded focus throughout this entire issue is how do we keep the Australian community safe? We will build a preventative detention regime which is constitutional, but we need Peter Dutton to work with us, and I call on him to do that.
PATRICIA KARVELAS: Okay, but you haven't answered my question about the other areas that it would cover. Can you describe them?
CLARE O'NEIL. Yep. So, what I can tell you is that we'll work through the detail of the law over the coming days. We've had a High Court decision for about 17 hours now, but the High Court decision actually specifically refers to child sexual abuse as one of the grounds on which preventative detention might also be lawful. These are the decisions that the government will make over the coming days and we want to get this law passed before the Parliament rises next week.
PATRICIA KARVELAS. So, it may just be additionally child sexual abuse, which of course would mean the vast majority of them would not be subjected to it.
CLARE O'NEIL: We will work through these issues, Patricia, and we'll do so in a way that is fast but also constitutional. What we have seen on the other side of politics is a pretty torrid history of rushing laws, doing it improperly and writing things that aren't constitutional, that are later thrown out by the High Court. And the consequence is that the Australian community is less safe. We don't want to make that mistake. We will work through this carefully and we have had a High Court decision for 17 hours. What we will do is build the toughest and most robust regime that we can, because our sole focus here is protecting the Australian community.
PATRICIA KARVELAS. So, does that mean you are prepared to sit on Saturday as Peter Dutton's called for?
CLARE O'NEIL: PK we will sit as much as we need to make sure that this law is passed by the Parliament when we leave next week. We are not breaking for Christmas until we have a preventative detention regime in place. I would just point out that just make sure you take Peter Dutton's words with a grain of salt here. I watched him come into the Parliament this week and when the Government introduced a bill to criminalise sex offenders from loitering near schools and preschools, the Opposition Leader came in and voted against it. So, let's just not make any bones about this. The opposition have played horrendous politics with this matter for weeks now. It's time for that to end. We want to build a preventative detention regime. We need them to work with us and stop wrecking the solutions.
PATRICIA KARVELAS: Let me go to that, because you're talking about the new penalties on visa breaches for those released detainees. They said it was half baked and didn't go far enough, that that was the reason that they took that position. Are you prepared to amend the bill?
CLARE O'NEIL: Well, they haven't proposed any amendments, Patricia. They haven't proposed any amendments. Their position is completely ridiculous and untenable. I would have thought that one thing that the Parliament can come together on is protecting children from child sex offenders. Now, after everything that Peter Dutton has said and done, beating his chest, walking up and down the country, pretending he's a tough guy, he then comes into the Parliament and votes against a law that will help protect Australian children from sex offenders. Now, I know there's a lot of politics that gets played around the place, but let's just be really clear. That is hypocritical, it is wrong and it does not help us protect Australians. Every move that we have made in how we've managed this issue has been focused not on politics, not on winning the day, but on making sure we protect Australian citizens. I wish I could say the same of Peter Dutton's behaviour.
PATRICIA KARVELAS: Well, you say everything's not been made with a political lens, but there is a political lens on this debate. It's a pretty politicised debate. Have you been on the back foot on this debate?
CLARE O'NEIL: PK, we received a very significant constitutional decision a few weeks ago and within one week and one day of that decision being made, we had done what we were legally required to do release people into the community on bespoke visas, we had set up a joint police operation between the Australian Federal Police and Australian Border Force, and we had created an entirely new regime to manage community safety concerns while these people are in the community. We did that within a week and one day. We now have a High Court ruling and we will move swiftly to build a preventative detention regime out of it. Now, you've been watching politics a long time, PK. I personally have never seen an Australian government move so swiftly to manage a constitutional change like this, have you?
PATRICIA KARVELAS: Well, I don't answer questions, as a rule. Constitutional law expert at the University of NSW, George Williams, said states had primary responsibility for preventative detention. It may be the focus on the Federal Parliament for this kind of detention is misconceived, he has said. Could you be going into an area that will be seen as unconstitutional, again, given it's the state's terrain to do this?
CLARE O'NEIL: The High Court ruling clearly creates space for preventative detention regimes and we are working through the decision at the moment. We have had the decision for 17 hours. We will make a law based around the High Court's new parameters for what the Parliament can do, and we will do it in the toughest way possible in order to protect -
PATRICIA KARVELAS. So, you don't think it's a state issue? You think this is-
CLARE O'NEIL: Well, that’s not what the High Court ruling says.
PATRICIA KARVELAS: Not all have committed serious crimes like sex offences or murder. Will they be allowed to remain in the community and for how long?
CLARE O'NEIL: I have said repeatedly that if it were up to me, all of these people would be in detention.
PATRICIA KARVELAS: Even the ones that haven't committed those?
CLARE O'NEIL: Yes, PK, because when the High Court made its decision, they all were in detention. And that is because Minister Giles and I had chosen to keep them there. I do not want these people on our streets. However, I must follow the law like every other Australian, and the High Court has required us to release these people into the community. Now, the most important legal thing for your listeners to understand is that the High Court has just told us that politicians can't punish. Only a court can punish. So, your questions about who would remain to be detained must now be referred to a court. And that is the process that we will have to work through.
PATRICIA KARVELAS: But ultimately, the laws will define the kinds of crimes they've committed, because obviously there's character grounds for some of these people. So, the court will interact with the laws that you're constructing?
CLARE O'NEIL: That's exactly right. And that is why the Parliament has a very important job to do now. Our government's commitment is to create the toughest preventative detention regime that is constitutionally possible and we will be working with the parliament to do that. Now, as I've said, we've got to see the opposition come with us and work with us constructively on this. They have behaved atrociously over recent weeks, making absolute politics out of this. When there are serious community safety issues at the heart of the matter, that time is over. Stop slowing us down, stop saying no. Come into the parliament and work with us to help protect the community.
PATRICIA KARVELAS: The Australian Border Force confirmed last night that it was unable to identify the location of one individual released from detention who refused to wear an electronic surveillance device. Is that because there was a failure from Border Force to essentially read their conditions to them?
CLARE O'NEIL: That is a police matter now and I'm not going to go into the detail of it other than to say that Australian Border Force and the Australian Federal Police have done an exceptional job here-
PATRICIA KARVELAS: So, they haven't failed?
CLARE O'NEIL: I am not going to come on your show, PK, and criticise people who put a uniform on every day to protect Australians.
PATRICIA KARVELAS: But they've done the wrong thing.
CLARE O'NEIL: I'm not going to criticise police. I would not do that. The Australian Federal Police and Australian Border Force have done an exceptional job at implementing a regime which was invented just a number of weeks ago. I stand by their performance, I stand by their integrity. We have referred this matter to the police and that's the end of the discussion.
PATRICIA KARVELAS: But in total, there are four people who left detention who are non-compliant with visa conditions. Can you confirm that’s because they left attention without Border Force reading the conditions to them?
CLARE O'NEIL: PK again, Australian Border Force have been exceptional in undertaking what is a completely new task for them. This is a completely new task.
PATRICIA KARVELAS: If it's a new task, does that mean they didn't implement the new task as they were meant to, because it's new?
CLARE O'NEIL: Again, sorry, PK, we're just going to have the same back and forth. I'm really proud of the work of Australian Border Force and the Australian Federal Police. They are exceptional organisations, exceptional people. They work every day to help keep our community safe and I fully support them in the work that they're doing.
PATRICIA KARVELAS: Okay, so basically, you won't confirm.
CLARE O'NEIL: I’ve just answered your question four times.
PATRICIA KARVELAS: But you haven't. With respect, you actually haven't. You've said that you respect their work but you haven't actually answered whether they did read the rights to these people.
CLARE O'NEIL: These are operational questions for the organisations. I'm telling you that we passed a law that gave them new powers. They have done an exceptional job at implementing them and I stand by their work.
PATRICIA KARVELAS: Don't we have a right to know what's gone wrong?
CLARE O'NEIL: PK Australian Border Force and the Australian Federal Police, I have great confidence in the work that they do. They will work through and resolve these issues over time.
PATRICIA KARVELAS. So, you say you want Peter Dutton to essentially work with you to get these laws through that are constitutional. What does that look like? Is the Prime Minister organising a meeting with him to try and work on this? Can you describe the process you're going to go through?
CLARE O'NEIL: We will work as constructively as we can with anyone in the Parliament who wants to place the priority on community safety, as the Albanese government does. It is likely that we will work with the opposition as a focus and a priority. They certainly have made all the right noises about community safety, PK. But the reason I'm so concerned about their actual intention is because of what we've seen in the Parliament this week, and that was the Leader of the Opposition lead his party to come in and vote against laws that help protect Australian children against paedophiles. I'm not making it up. That actually happened. It's actually on the public record. Now what we need is for the opposition to stop playing politics with this. We them to stop saying no, stop slowing us down, work with us on these laws so we can work constructively as a Parliament to help protect the community.
PATRICIA KARVELAS: Clare O'Neil. Thank you.
CLARE O'NEIL: Thank you.
END
