November 28, 2023
SCOTT WALES: James Paterson is the Shadow Home Affairs Minister. He joins me now. Senator, welcome.
JAMES PATERSON: Good to be with you, Scott.
WALES: Can I get your response to the High Court, the reasons they've released this afternoon as to that decision they made? Going back a couple of weeks, that indefinite immigration detention for people with no prospect of deportation was unlawful.
PATERSON: Well, it's a good thing we now have the benefit of the judgement so we know exactly the parameters of the decision, who it applies to and what the Parliament can now do about it. There's two critical things that we learned from the judgement. The first is that it was a very narrow judgement that only applied to the particular circumstances of the applicant, NZYQ. And therefore it's possible that it was only necessary for that applicant to be released. The judgement focuses on the fact that child sex offenders have never been successfully placed in a third country and therefore he had no prospect of being resettled and therefore it was indefinite detention and he had to be released. That means it is possible some of the 140 other people that the government released into the community, it was not necessary to release because their facts were different. The second important thing is that the High Court has provided a very clear pathway for how the Parliament can now protect the community, as the Coalition has been calling for, for nearly three weeks now. It says a preventative detention scheme could be introduced to remove someone from the community because they present an unacceptable risk of reoffending. Now that could have been legislated three weeks ago. We called for it to be legislated three weeks ago. Now there's no excuses. The government should legislate it tomorrow.
WALES: So, you're saying you would like to see a new regime introduced where someone could continue to be detained despite having served their sentence, and that someone being a dual citizen and being an Australian?
PATERSON: No, not necessarily an Australian. None of these people are Australian citizens. They are citizens of other countries or in some cases they are stateless and they have come to this country, they have committed a crime or they've either violated a provision of the Migration Act, the character provisions, and therefore normally they would be deported. But for a range of reasons, they can't be deported in some cases because the crime they've committed is so unconscionable that no one will take them. In my view, yes, we should be able to re-detain at least the highest risk offenders in that cohort based on the risk they pose to the community, in the same way that we can continue to detain or preventatively detain a terrorist. And what happens in those instances is prosecutors, on behalf of the government, apply to the court to have someone detained and explain why they are at risk. And it's up to the court to decide whether they agree with that. Now, the High Court has now clearly said that can be done. This is what we've been saying should be done for three weeks. That could have meant some of these people were never released into the community, but at least now they can be re-detained.
WALES: The Coalition, you did vote against criminalising the emergency controls imposed on the released detainees, but you had previously lobbied for those measures. Why?
PATERSON: Two reasons. This was introduced on Monday in the Parliament. We voted against it because it didn't go far enough. It didn't include a preventative detention regime. But secondly, when this was being debated in the parliament, we knew that the High Court was handing down the reasons for its decision at 2:15 pm this afternoon. And we knew that Bill would have to be amended to incorporate the High Court's decisions and act to protect the community. We thought and said at the time it should include a preventative detention regime. We now have the benefit of that ruling and the government is almost certainly going to have to amend its own bill, which it rammed through the House of Representatives. It will have to be reconsidered by the House of Representatives. It would have been better if they just took our advice and waited for the High Court's ruling, given that we knew it was within 24 hours of being handed down.
WALES: Now, there are some, as we've discussed, some convicted criminals in this group, but there are also some that aren't. You've advocated for the use of preventative detention orders, which are used to keep convicted terrorists, for example, behind bars. And you say they should be used on this group. Are those situations comparable, though?
PATERSON: Well, firstly, I've said all along that it should be used for the highest risk among this cohort, it would be unlikely to be able to be applied to all of them, but at the very least, the highest risk. But secondly, preventative detention in this country is used for people who have not been convicted of an offence. That's why it's called preventive detention. We have another regime called continuing detention, which is used for people who have been convicted to keep them into custody. So yes, it is already possible in this country to preventatively detain someone based on the risk they pose to the community. And the High Court has endorsed that model. For this cohort, they specifically said a child sex offender who presents an unacceptable risk of reoffending could be lawfully detained under a preventative detention regime.
WALES: Do you do you not think, though, that, you know, given the provisions such as ankle bracelets and night time curfews, that this is still a form of indefinite detention, isn't it? Is it not?
PATERSON: No, it's clearly not a form of indefinite detention. These people can move about the community during the day.
WALES: But, severely limiting their civil liberties in the wake of them having served their sentence.
PATERSON: Yes, we are limiting their civil liberties in an appropriate and proportionate way based on the risk they pose to the community. Let's remember, among this cohort are murderers, child sex offenders, contract killers, rapists and other serious violent criminals who have no right to be in our country. They do not have a valid visa to be here, they would be deported in any normal circumstances, except no other country will take them because of the offences they committed. So frankly, I think it is a very limited restriction on their liberty that they have to wear an ankle bracelet and they have a curfew. Many of them should not be out in the community at all.
WALES: But what about those in the group that aren't convicted criminals?
PATERSON: Well, as I've said, it would be based on risk. And so, of course, if there are lower risk offenders who don't pose a threat to the community, then preventative detention would not be necessary. And of the 141 people who've been released, the Minister for Immigration who knows the details of each of those cases, which neither you or I have had access to, has decided in 138 of those cases that they do need an ankle bracelet and do need to be subject to a curfew. There are only three people who he decided do not need to be subject to those restrictions.
WALES: Is there anything Australia can do other than detain individuals who come to our shores in this way? Because I mean, we are accepting that, aren't we that we are applying the law differently to one group of people than to the rest of the community?
PATERSON: There are other options. For example, we should continue to find resettlement options in third countries if they are willing to take them. But it's perfectly acceptable and normal to treat differently your citizens and your non-citizens. Almost every country in the world applies a different standard and has different rights, depending on your citizenship. Because coming to our country, if you are not a citizen of our country, is a privilege. It's not a right. And what we ask in exchange for you coming to our country, we are a pretty welcoming country, we welcome lots of people here. But we say, please don't break any laws. Please don't rape anyone or murder anyone or abuse someone and if you do, then I think it's quite reasonable that you be deported or detained.
WALES: But is it reasonable enough if they've actually served their sentence to then continue to detain them?
PATERSON: Yes. If they pose a risk to community, yes, they should continue to be detained. Just imagine the outcry in the community if someone who was a non-citizen who did not have a valid visa to be here, who was only here because we can't deport them because of the nature of their crime, then was released in the community and committed another crime. I mean, the Australian people would rightly be completely outraged by that and that is the risk that we are guarding against by introducing a scheme like this.
WALES: All right. No doubt this debate has some way to run. James Paterson, thank you for your time.
PATERSON: Thank you for having me.