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DAN TEHAN MP
FEDERAL MEMBER FOR WANNON
SHADOW MINISTER FOR IMMIGRATION AND CITIZENSHIP
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REFERRAL OF RUSHED IMMIGRATION LEGISLATION TO SENATE INQUIRY

March 27, 2024

Joint press conference at Australia's Parliament House with Senator James Paterson, Shadow Minister for Home Affairs, Shadow Minister for Cyber Security, Shadow Cabinet Secretary and Liberal Senator for Victoria.

JAMES PATERSON: Good morning, well today the Minister for Home Affairs is running away from scrutiny of her apparently urgent legislation to deal with the ongoing immigration detention crisis. The Minister for Home Affairs is running away from transparency about the need, the apparent urgent need for this legislation. Last night in a specially convened Senate hearing the government was completely unable to answer basic questions about this legislation and the need for it. In fact, Coalition senators basically begged the government to demonstrate why it was so urgent, why it had to be rushed through the Parliament in 36 hours, and they failed to do so. They couldn't explain how many people this would affect. They couldn't explain what the consequences of this would be for any upcoming High Court cases. They couldn't explain how or when they would use this legislation or who would apply to. In light of that, it's very difficult for the Coalition to support such a rushed passage of this legislation. We are very concerned about unintended consequences. We are very concerned about the failure to do work on third country resettlement options. We are very concerned that this might inadvertently encourage people to get back on boats again. And so therefore, this morning in the Senate, we will be moving to refer this bill to a proper inquiry so that these issues can be carefully and appropriately considered. This is the normal legislative process, so stakeholders and independent experts can come forward and give their evidence to a Senate committee. And we will ask that Senate committee to report back to the Parliament before the return of the Parliament for budget sittings so that this legislation can be considered in a proper way, at the proper time.

DAN TEHAN: Botched. Chaotic. Shambolic. Five days ago the immigration minister had a piece of legislation which he could have briefed the Coalition on, yet he sat on it and then gave it to us at 7:30 a.m. yesterday morning and gave us a 20 minute briefing with officials at 8:00 am. We haven't heard from the ABF. We haven't heard why this is urgent. As a matter of fact, we haven't heard from the minister himself. It is absolutely extraordinary, extraordinary that the Minister for Immigration would introduce legislation of this nature and fail to front up to a press conference to explain it. He is in witness protection, he is trying to rush this legislation through the Parliament without proper process, and he will not front up and explain whether there might be unintended consequences or any other thing which might happen as a result of his complete incompetence.

JOURNALIST: Senator, do you do you have the support of the Greens or the crossbench to get this through the Senate?

PATERSON: I'll let them speak for themselves. But in the Senate hearing last night, I think all Senators were frustrated by the inability of officials to answer basic, factual questions about this legislation, and the cohort they could potentially apply to. I think all Senators were in agreement that more scrutiny of this legislation is necessary. So we hope that the Greens and Crossbenchers will support a referral to the proper inquiry this morning in the Senate.

JOURNALIST: If you don't get the support needed, will you vote for the legislation as is?

PATERSON: Well, I think that'll be the hypothetical question we won't have to worry about.

JOURNALIST: Reporting by budget week. The High Court case ASF17 is going to be heard on the 17th of April. Don't you risk having egg on your face if the Commonwealth loses that case and needs these powers?

PATERSON: Well Paul, that's why we asked the government last night about what the interaction between this legislation and the High Court was, and the upcoming case, and they were at pains to say there was no connection, that there was no relationship, that it would not influence the case at all. We practically begged them to explain that there was a link and they failed to provide it. However, having said that, if there is some urgent, unforeseen need the evidence which the government has not provided us in either the hearing last night or in the briefings yesterday, then we are prepared to bring the Parliament back to consider this legislation during debate. We will bring our Senators and Members back to pass this legislation if a genuinely urgent need does arise for it to be passed. But so far, the government has provided no explanation of what that is or could be.

JOURNALIST: Do you have concerns that members of migrant community from Iran, South Sudan, places like that, whose family members wouldn't be able to come under these laws?

PATERSON: Well, that is for the government to explain. Last night, when we asked them about how they would use this power to designate a country of concern, they basically said they didn't plan on using it at all, so how is it urgent? They thought the threat of having it would be powerful enough to get countries to cooperate to take their returnees, and they didn't explain the implications that would have on diaspora communities here in Australia or their family members. These are legitimate issues that are going to have to be pursued in the Senate inquiry.

JOURNALIST: Are you genuinely concerned about the impact on those communities?

PATERSON: Of course, we have to understand what the implications of this legislation is for those communities and for all Australians. The government wasn't able to explain that, and that's why we want a proper Senate inquiry.

JOURNALIST: It is, in fact a political decision. Is it just not another case of the Coalition saying no?

PATERSON: Well, I think we've demonstrated on three separate occasions when the government brought forward urgent legislation, that we are prepared to work in the national interest, to pass quickly to protect the community. And on this occasion, we tried to help make the case for the government as to why it was urgent, and they weren't able to help us help them. And so if the government can't even make their own case for urgent legislation, we can't do their jobs for them. They have to do it themselves.

TEHAN: I just want to add to that, because it's a really important question. Why did the Minister for Immigration had that legislation ready on Friday and not presented to us until Tuesday of this week, and give us only 20 minutes to get a briefing from the department? If there was anyone playing politics, it's been the Minister for Immigration and the government. The process has been shambolic, it has been rushed and once again it just highlights his incompetence.

JOURNALIST: Just going back to last night's hearings, are you suggesting that Home Affairs wouldn't provide a reason? My understanding is that they said that it didn't go to the point of law in the ASF17 case, but Stephanie Foster did say to you that it would give the government an extra tool to deal with that case if they were unsuccessful, were you not satisfied with that answer?

PATERSON: It was like getting blood out of a stone. We tried 5 or 6 times before Stephanie Foster finally made that commitment. But the truth is that the government wasn't able to say to us who this law would apply to, they don't even know what the cohort is. They wouldn't name anyone that they plan to use it against. And in the absence of that absence of a genuine, demonstrable, urgent need, how could we possibly support it being rushed in such a botched and shambolic process.

JOURNALIST: But she did say that, she did say that it would give extra tools after ASF17, do you run the risk here of obstructing the government in dealing with that?

PATERSON: Well, the government has also said they are confident about their prospects in the ASF17 case. They are confident that they will prevail in that case. If they somehow failed in this case, as they did in NZYQ after making concessions that they should not have, we stand ready to bring the Parliament back. That legislation could be passed when the Parliament returns, if they lose that case, and they need it urgently to manage it, but they will have to make that case and they haven't made it so far.  

TEHAN: You can see why it's a bit contradictory though, you do say that you are for strong borders. This arguably would help that, and yet you are not supporting it? 

PATERSON: I think we've demonstrated time and time again we are for strong borders, but we're not for rushed, botched legislation. The other legislation that the government has rushed through the parliament is right now facing constitutional challenges. It won't protect anyone if it's found to be invalid. We have to properly test this legislation in the proper way. The only circumstance which the Parliament would ever agree to Rush a bill through within 36 hours is if there's a genuine need. And I don't know about you, but I haven't seen what that genuine need is. The government hasn't made that case, and in the absence of that, we should follow due process.

JOURNALIST: So you're prepared for the Senate to rise this evening with this legislation not being finalised by the upper house?

PATERSON: Yes. That's our intention. Our intention is to refer to the Senate inquiry so it can be properly considered and brought back to the Parliament in the usual way, in the usual times to be considered in the main sittings.

JOURNALIST: That means if you see the outcome of the case first, the legislation will need to be retrospective. To deal with that ruling, to deal with people captured by that ruling? 

PATERSON: I don't see why that's the case. None of the NZYQ legislation has been retrospective. And other than the terribly botched issuing of visas on the government's watch, which means ten people who have breached their visa conditions, can't be charged, we’ve otherwise been able to deal with the NZYQ cohort, then this would be no different.

JOURNALIST: Do you think it's responsible to ask officials last night whether these new powers were going to be used on ASF17 and other plaintiffs. Doesn't that compromise the court case?

PATERSON: Well, I hope as a journalist, you're not saying that asking a question is irresponsible. Only an answer to a question could be potentially irresponsible. It's up to the government to say what they can say in public forums. But in a liberal democracy, opposition Senators and journalists like yourself should be able to ask yet ask any question you like, it's up to them how they answer it.

JOURNALIST: Last night you did ask how many uncooperative people are currently in detention. Did you actually get that figure?

PATERSON: No, we didn't get that figure or many other figures that we asked for. So many of the questions that we have asked to be taken on notice, and none of those answers have been provided to the Senate committee by this morning. The legislation is supposed to be considered any moment in the Senate without those answers being provided. Now, without knowing who this cohort is, how it would apply to them, what the consequences would be, we think it's irresponsible for it to be rushed through.

JOURNALIST: The Home Affairs officials said that in this situation, they discovered the gap in the law in the last couple of weeks or so, or late last month. I know neither of you were in these portfolio areas in the last government, but the issues around people not, cooperating when it comes to their deportations have been around for some time. The issues around countries not accepting people back who we want to deport have been around for some time. Was the coalition ever briefed that this was an area of law that needed attention when it was in government?

PATERSON: I can't answer that. I wasn't me in those portfolios, I was never briefed. But this government has been in power now two years, their argument last night was somehow just by some spontaneous process in February, they suddenly discovered that this was an issue and needed to legislate on it. Well, if that was the case, why won't they transparent about that? Why won't they genuinely bipartisan about that? Why didn't they come to us then and advise us about the need for this legislation and the steps that were taken, or why didn't they do so after the 5th of March, when the drafting instructions was given to the department? Or why didn't they do so as Dan said on Friday when the legislation was finalised? So we could have carefully considered it over the weekend, maybe schedule a more extensive senate inquiry, maybe hear from more witnesses. They didn't do any of those things. They just decided to drop it on us on a Tuesday morning with a three day sitting week and say, take it or leave it without proper scrutiny and I think that's an abuse of process and one we are not willing to be party to.

JOURNALIST: Human rights and Migration lawyers have described this bill as draconian and complete overreach, do you share their concerns? Or is this about the fact that you feel that this is being rushed?

PATERSON: Well, I do wonder whether those issues were properly considered in Labor's caucus committee on Monday night or their full caucus on Tuesday. I note that the legislation again violates the ALP national platform when it comes to a mandatory minimum sentences. We don't have an in-principal opposition to mandatory minimum sentences. We think they can be appropriate in some circumstances. But the Labor Party has traditionally been opposed to that. I'm looking forward to hearing from those human rights groups and others as part of an orderly Senate process.

JOURNALIST: If the government is successful in the ASF17 case and people remain in immigration detention, will you still look to support these laws, or will they not be necessary? 

PATERSON: We are open minded about that, but it will be up to the government to demonstrate the need for this legislation, if that's how the High Court decision goes.

JOURNALIST: The laws will force someone to cooperate with their own deportation, even if they have a genuine fear for own safety from being deported to their country, is that humane? 

PATERSON: All good questions to be explored in the Senate inquiry.

JOURNALIST: You voted against the Senate inquiry yesterday when the Greens put up an inquiry, what's changed between then and now?

PATERSON: Yeah, that's a great question. It was a good faith effort to hopefully get the answers that we needed out of the Department of Home Affairs last night. We genuinely hoped that that would answer our questions, solve our dilemma and allow us to support the legislation today. In good faith we tried to work with the government. They weren't able to work with us. They didn't provide the information that we needed. They couldn't answer our questions. And so we have no choice. I probably would be rather standing here today being able to support this legislation, but we can't support legislation that hasn't had a case articulated as it is with this piece of legislation.

TEHAN: Just to add to that, one of the things that deeply, deeply concerns us is the fact that you had a Minister running away from the media today refusing to answer questions about this legislation. And you've got another minister, the Minister for Immigration, who is in witness protection and will not answer any questions from the media. What are they hiding that is of deep concern to us. And it should be of great concern to you.

JOURNALIST: You called to action on immigration detainees, isn't this that action?

PATERSON: Yes, we called for action. And the government's been typically very slow to act on these things, even when we've given them very specific advice about how to do that. But they could have taken action on this earlier. They could have given us this legislation last week, we might of been able to manage this in an orderly way if they did so. But instead they tried to play a tricky political game, dropping it on us at the last minute, not giving the Senate or the Crossbench or any minority parties proper time to consider this legislation.

JOURNALIST: Just to clarify do you have the insurance from the greens that they will support this inquiry?

PATERSON: I'm not a spokesman for the Greens, happy for them to speak for themselves. But as you know, as you noted, they moved yesterday for an inquiry so I think it's reasonable to expect that they would be keen to have that inquiry.  Thanks, everyone.

ENDS

Media contact | Sandie Gustus 0408 564 232