Joint media release with the Hon Andrew Giles MP and Commissioner Michael Outram
Subjects: Legislation covering NZYQ cohort released from immigration detention, citizenship cessation legislation, review of Department of Home Affairs Secretary Mike Pezzullo
CLARE O’NEIL: Okay, good morning, everyone. I’m here with Andrew Giles and Commissioner Mike Outram, who leads Australian Border Force. There are three things that we’d like to take you through this morning. The first is I’ll explain the citizenship cessation law that I will introduce to the parliament this morning. On NZYQ we will get an operational update on the implementation of the law that the parliament passed just over a week ago, and then we’ll talk a little bit about what’s going to happen in the parliament and beyond on NZYQ as we step through what is the government’s ongoing response to this matter. Andrew and I will briefly explain this; Commissioner Outram will provide the ops update, and then we’ll come to you for questions.
So let me start with the citizenship cessation regime. Those of you who have been watching this debate for a long time know that this has been a long and highly vexed and highly politicised issue for the Australian Parliament. Peter Dutton created a set of laws that was unconstitutional and his whole framework was thrown out of the High Court as of the High Court decision earlier this month. It is now for Labor to clean up his mess, and we are going to start that work today in the parliament.
The former government had essentially two goes at making these laws; the first set of laws were introduced in 2015. They were then repealed by that government because they were so unworkable. And in 2019 this new citizenship cessation regime was put in place.
The issue with the previous laws was that Peter Dutton made himself the decision-maker. He made the minister the decision-maker. And the two prongs of the laws that Peter Dutton passed in 2019 have now both been declared unconstitutional – one in June of last year and the other just a month ago.
What makes this so much worse is that Peter Dutton was advised at the time that these laws were unconstitutional – not advised by just anyone; in fact, the Attorney-General Mark Dreyfus made it very clear that there were constitutional issues with this law. He did not listen. So Peter Dutton twice tried to put in place legislation that didn’t work in the High Court and today our government will fix his mistake by making good laws.
So what will our laws do? I just want to point out three important features. The first is that the decision-making will be placed, rightly, with the court. The two High Court decisions on which we are basing this law make it abundantly clear that the High Court views citizenship cessation as punishment, and the only body that can punish is the court. The second is it will do this through a sentencing model. And, again, in the High Court’s decision in November in the case of Benbrika what was made clear is that the appropriate moment for a court to consider this matter is through the sentencing process.
And then there is a third feature that I’d like to highlight for these laws. When Peter Dutton put these laws in place they were just targeted at counter terrorism. Our approach is broader. What ASIO tells us is that there are other national security issues that are of grave concern to them, particularly things like foreign interference and espionage. Our laws for the first time will make it possible for a court to withdraw someone’s citizenship if they offend those particular laws.
So I’ll now turn to the NZYQ matter and hand over to Andrew to speak about the matters.
ANDREW GILES: Thank you very much, Clare. Today we are introducing a bill that will make tough laws even tougher. The Migration Amendment Bridging Visa Conditions and Other Measures Bill 2023 will introduce new criminal offences for people recently released from immigration detention as a direct consequence of the High Court’s decision in NZYQ. Importantly, we are making these laws durable by getting ahead of any potential future challenges.
We are strengthening our approach that already exists in these laws by making it an offence to work with another person who is a minor or another vulnerable person for one of these people, an offence for going near a school, a childcare centre or a daycare centre, and also an offence for an individual part of this cohort to contact a victim or a member of that victim’s family.
Importantly, too, we are clarifying and expanding the power of our law enforcement agencies when it comes to applying electronic monitoring devices as well as in relation to the use and disclosure of information used from these devices. And what this comes down to, is through the bill and complementary amendments to the migration regulations we are making strict laws stricter, tough laws tougher. We are doing all we can to ensure that these strict laws are robust and enduring and will withstand legal challenges so that we can maintain community safety, which has been our focus from day one.
Now, there is already one challenge before the court which we will vigorously defend. And we expect the opposition to work with us to pass these new laws today because fundamentally talking tough doesn’t keep Australians safe. Strong laws do. Strong laws keep Australians safe.
And I want to be very clear: we will continue to leave no stone unturned when it comes to ensuring the safety of the Australian community, which is what we are doing today. Together with our $255 million boost to the AFP, the ABF and the Commonwealth Public Prosecutions Office we are working to ensure that strong laws are equally strongly enforced to keep communities safe.
In response to the case brought in the High Court, which the government opposed, we’ve passed emergency legislation. Since that decision we have been working around the clock to stand up a joint AFP and ABF operation to impose strict conditions on those released from detention and see them enforced.
I want to really thank the AFP, the ABF and all those agencies involved for their exemplary efforts, and on that, I will hand over to Commissioner Outram to provide an update on those oppositional efforts.
MICHAEL OUTRAM: Thank you, Ministers, and good morning, everybody. Over the last few days the Australian Border Force has been providing support to the government in terms of implementing these new laws for the 138 people that have been released from immigration detention that require electronic monitoring. Of those 138, as at this morning 132 are now being electronically monitored. That means that Border Force officers have located those people and applied or fitted electronic tags.
Of the six that remain four of those have been referred to the Australian Federal Police for investigation. That means there’s been noncompliance in those four cases. And the remaining two cases are difficult, complex cases. For example, involving sort of health issues, and those two cases are being worked through today. Thank you very much.
JOURNALIST: Minister –
CLARE O’NEIL: Sorry, just before we get to – get into it, Paul, just a couple more things to add.
So just so you’ve got clarity about the resourcing, this is a $255 million two-year package of which $150 million will go to Australian Border Force. Mike’s just given you an update – Commissioner Outram has given you an update there. But can I make you understand that when this law was passes in the parliament Australian Border Force did not own an electronic monitoring bracelet and had never fitted one before. And I just want to credit you, Commissioner, and your staff for the work that you’ve done to get this scheme implemented. We’re very grateful to you.
So $150 million for Australian Border Force, $88 million will go to the Australian Federal Police. The model that we’re using here is ABF essentially does the monitoring. The moment there is a breach of the conditions the case is handed to the AFP for investigation and prosecution. And then some funding too to the Commonwealth DPP.
I just want to cover off one more matter, which is about victim support. When we were last here in Canberra the Deputy Prime Minister made a commitment that the Commonwealth would make best efforts to contact victims. We have actually gone beyond that – we have established a program called Victim Link, which is within the Department of Home Affairs. This is a service that is already up and running. It is coordinating the reach-out to victims and their families should they want to engage with government. This is a wraparound service which is being staffed by trauma-informed expert counsellors, and they are essentially case managing these people and assisting them in engaging with other support services. So you can reach that service if you would like by contacting our Home Affairs central help line and they will direct you to it, or the Home Affairs website.
So we’ll take questions now.
JOURNALIST: We just heard about 138 people there. It was 93 last week. So could we please get some detail about when and how it was decided that you needed to release the other 45 people? And, secondly, how much effort has there been to date on deporting the people in the NZYQ cohort? How much of this $250 million will be spent on that, and how soon could we see approaches to third countries to take people in this cohort?
CLARE O’NEIL: So let me just explain the consequences of NZYQ. So as you know, there was a High Court decision just over two weeks ago that required that NZYQ and people of his description be immediately released from immigration detention. So the features of that individual are someone for whom it is not reasonably possible for us to move them to another country and someone who is in immigration detention under the same sort of circumstances as NZYQ.
The reason a second cohort has been brought in is because we have received advice that this also needs to apply to people who have some kind of legal matter on foot with the Commonwealth. So that was not the circumstance of NZYQ; his legal matters with the Commonwealth had ceased. So for people, for example, who might be appealing an aspect of Minister Giles’s decision-making, those people we have been advised we are also required to release.
What I would like to share with you is that this is it for NZYQ. So the entire detention cohort has been assessed against the criteria. What now awaits us is this period where the reasons for decision will be released by the High Court. It is then that we’ll understand whether any further applications – it’s possible that no further criteria will be set down by the High Court. It is possible that other cohorts will be brought in. And this is where we are because of the High Court’s decision to give us a clear decision, a Full Court High Court decision on NZYQ, but not to release reasons for those decisions.
JOURNALIST: I already asked how much effort has there been to deport people in the NZYQ cohort? Because when these cases come before the courts, like NZYQ, like [indistinct], judges say almost no efforts, leisurely approach to removal. So what efforts have been taken to remove these people? How much of this $255 million will be spent on that, and how soon could we see approaches to other people to take them?
CLARE O’NEIL: So removals is an ongoing process that the Commonwealth works on, and we’ll continue that.
JOURNALIST: On the catch-up legislation for NZYQ, Minister, you’ve said it clarifies law enforcement agencies’ use or ability to apply devices. In what way? And also, where are you at with curfews, because I note one released detainee variously described as “Malaysian hitman” was quoted at the weekend saying he was not subject to any curfew. So do the curfew applications match with the electronic device applications?
ANDREW GILES: Yeah, well, obviously I don’t comment on individual cases. But the curfew and electronic monitoring conditions generally would apply across the board. There are individual visa decisions to be made. Obviously any breach of any such condition is something that would be a matter for the AFP in the in terms of that the Border Force Commissioner just set out.
In terms of the clarification, there has been a power in the regulations. We’re inserting it into the primary legislation for the avoidance of any doubt and to allow a more expansive approach, particularly in terms of the sharing of information between relevant agencies.
JOURNALIST: Minister, given the haste we have seen – these laws applied in the last week or so, there’s been criticism from legal bodies that we’re saddled with bad law in some instances. A lot of these people released aren’t – you know, they face the rest of their lives the threat of mandatory jail terms, you know, for minor breaches like coming home late or something like that.
CLARE O’NEIL: Yep.
JOURNALIST: Is there a plan when the dust settles to sort of nuance this response to apply proportionality, you know, look at preventive detention and, you know, maybe lessen the conditions on some of these other people? Or is this how it’s going to be for the rest of their lives?
CLARE O’NEIL: I would see the Commonwealth’s approach to this in three phases. So we had an immediate decision by the High Court and then one week and one day later you saw the government release people on bespoke arrangements. We’d set up a joint police operation between AFP and ABF and we constructed an entirely new regime to manage these people appropriately in the community.
The second phase is what we’re in now, and that is from the passing of that law to when we receive reasons for decision. We are using this law to manage community safety risks while we await the High Court’s clarity on exactly what the defined boundaries of the law are. And I would just say there are some pretty fundamental things that the High Court is considering in its decision here.
When we receive reasons for decision, we will be able to establish durable approaches to what is a very different way that the Commonwealth will have to manage people who we belief are a risk. But we cannot do that properly until the High Court give us their reasons, and that will come I hope shortly.
JOURNALIST: Minister, with the six that remain unmonitored, what offences have they been convicted of? And particularly the four that are refusing to comply, do you know where they are and what’s being done about them?
MIKE OUTRAM: Thank you. In terms of the scale of offending, all I’ll say is that they’re at the lower end of risk to the community, those four. In one case that’s been referred to the Australian Federal Police we’re still making attempts to contact that person. The other three have been contacted and we know where they are.
CLARE O’NEIL: We’ll go Clare, Anthony and James.
JOURNALIST: Minister Giles, last sitting week you committed to giving the opposition a list of the offences. Are you able to tell us what the offences are of the cohort now released?
ANDREW GILES: I should confirm that I have provided those details to the Deputy Leader of the Liberal Party. We’ve also briefed the opposition twice on these matters. As I think has been discussed, there has been a range of offending, including very, very serious offending, which is why we have put in place both the legal framework that was passed by the parliament in the last sitting week and why we are seeking to expand the range of offences in the terms that I’ve outlined today.
JOURNALIST: But can you publicly say here what categories and how many people in each of these categories have offended? That’s not individual cases but [Indistinct]?
ANDREW GILES: That’s true, but what I can tell you is that there is some very, very serious offending here, including the sort of offences that have been widely spoken about, including offences against children, including sexual offences, including other very serious violent crimes, which is why we have put in place the regime that was passed through the parliament on the Thursday of the last sitting week and why we are seeking to strengthen it today and seeking the sport of the opposition in that regard.
CLARE O’NEIL: And just to clarify, these people were in detention under our government. These are decisions that Andrew and I made to keep them in detention. If we had legal power, they would not be in the community today. But the High Court decision must be complied with, and we’re doing that in the way that best protects the safety of the community.
Anthony, and then we’ll come to you, James.
JOURNALIST: There’s been a lot of media coverage of the single boat arrival, but last month we saw 74 arrivals by plane who have claimed asylum. When it was 68 a month under the Coalition, Labor said that was a crisis. Is it a crisis now? And how long will it take the response to in Nixon review to start getting those plane arrival numbers down?
CLARE O’NEIL: So, thanks for your question. I wouldn’t use inflammatory language about this. What I would say is that we have been left with a fundamentally broken migration system and we have a plethora of reports over a decade that have said that. We now have the Nixon review and the Parkinson review, both telling us that virtually every piece of this important machinery of government is not working at the moment.
And the refugee processing issues that you point to are very much a part of that. One of the reasons that Minister Giles and I are so resolute trying to fix this is because the people who are punished by the exploitation of this system by people who have no claim to be refugees are people who are actually refugees themselves who are being left in a queue essentially for a decade without being able to have any sense of certainty.
Now, you would have seen that we put in place a very substantial package with a significant dollar amount attached, and we expect to see results from that soon. But it’s going to take some time. We have to show people that this business model is broken and the pathway is cut off, and we are doing that work at the moment.
And if I can just say finally, you know, we’re here today talking about citizenship loss, these broken laws that Peter Dutton left us with. Every corner of the Home Affairs Department that Minister Giles and I look to, there is a mess left for us by the Leader of the Opposition. We are working through those issues piece by piece and in a clinical and calm manner, and that is the way to protect the national security of our country.
JOURNALIST: When will the government release details or respond to the details of the independent review into Secretary Michael Pezzullo’s conduct? Will it be released publicly?
CLARE O’NEIL: The report’s been received by government, and I can’t comment on it until the Prime Minister has made a public statement, and I’ll let him do that.
JOURNALIST: Minister, [indistinct]?
CLARE O’NEIL: I’ll let the Prime Minister – that’s a report to the Prime Minister; I’ll let him deal with that.
JOURNALIST: Can I just ask, are there adequate resources going into the surveillance of the top end of Western Australia, and does [indistinct]?
CLARE O’NEIL: Look, I’m not going to comment on the border matters. Australia has a large border. We are very well served by ABF and many other agencies that assist us with this – that assist us with this. We well make sure that any resourcing requirements are met, and we’ve done that since we’ve been in government.
JOURNALIST: Minister, could I ask Minister Giles –
CLARE O’NEIL: Excuse me, no, we’re coming down here. Sorry, Paul, you’ve already asked a couple of questions actually. David, or you down the front? Do you want to ask anything?
JOURNALIST: Sorry, my question was on Pezzullo as well. And so I’ll ask on that topic but a different question, and it’s basically in looking at the activities of – or in looking at Mike Pezzullo, did that raise any questions about contracts entered into by the Department of Home Affairs, and will there have to be an examination of any contracts that the department entered into over time?
CLARE O’NEIL: David, I’m going to let the review that’s been handed to the Prime Minister be dealt with separately. The Prime Minister has received that review and he will handle the discussion about that. And I would just say that you would be aware that I asked a review to be undertaken into specific contractual issues that were raised by the Nine papers, and we will come back to you on that review in due course. So the short answer to your question is yes, and it’s already happened. Clare.
JOURNALIST: [Indistinct] last month that there’d been a 6 per cent reduction in the days ships patrolling our borders and a 14 per cent reduction in planes due to labour shortages. So when you say that the border patrols are adequate at the moment, do you acknowledge that there clearly is a reduction in that because of labour shortages?
CLARE O’NEIL: No, don’t agree. Paul.
JOURNALIST: Minister Giles, why did you concede on the 30th of May it was not possible to deport NZYQ before approaching other countries to take him, and how does that square with Minister O’Neil’s claim that operational advice said that it was likely that you would be able to deport him?
ANDREW GILES: Well, I’m not going to comment on the handling of litigation in the High Court.
JOURNALIST: Well, it’s run and done, and this is actually about an operational matter about why efforts weren’t taken to deport him until after you conceded that central fact. It’s not before the courts
CLARE O’NEIL: Sorry, Paul, can I say you’ve had on the record comments. Neither of us is planning to add further to them. Phil, this is the last question.
JOURNALIST: Just one last one, Minister: a lot of the Liberals are saying quite openly that had Pezzullo not been in the sin bin you would have been better prepared for the High Court decision. What’s your response to that?
CLARE O’NEIL: I think that’s ludicrous.
JOURNALIST: [Indistinct] I think the government’s indicated they won’t be retrospective in their application to Benbrika, but is there a cohort of people that are being monitored to whom you expect to apply these stripping laws?
CLARE O’NEIL: Okay. So the laws are retrospective in one sense because they will go back to conduct that occurred from 2015 forward. However, the laws to be constitutionally sound are attached to sentencing decisions and referred to a court. So the way it will work is the minister will apply to the court to ask the court to consider citizenship cessation under listed criteria that’s in the bill. And so it must take place in the context of sentencing. So anyone who has already been sentenced cannot legally have their citizen ship taken away, and I’m confident that’s the only way that we can do this within the constraints set down for us by the High Court.
Okay, thanks, everyone.
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