Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Hansard source

I refer to my earlier answer, in which I made very clear a point Senator Cash continues to not seem to appreciate, which is that we got to this mess because Mr Dutton and the coalition implemented an unconstitutional and unlawful detention regime in which the then minister, Mr Dutton, decided who was detained and who was not. That is exactly what the High Court has found to be unconstitutional and unlawful. The regime that we're putting in place will leave it to the court to make that decision. Senator Cash can ask as many times as she likes how many people this will apply to, but I'm not going to give a number, because that is exactly the problem we are trying to fix—ministers dictating these terms rather than courts.

I know Senator Cash and the coalition have a long history of believing governments can operate outside the law. We saw that with robodebt, and we saw the consequences of that. But this government will follow the law and we will follow the High Court reasoning, whatever we might think of it, and we will deliver laws that do stand up in court. For that reason, I'm not going to be any more specific about this issue.

During that contribution Senator Cash moved some amendments, so I might just take the opportunity to put the government's position on the record. We will be opposing Senator Cash's amendments, because, simply put, they are unworkable. We appreciate that there is a desire for transparency around the operation of this regime. That is why I refer Senator Cash to clause 395.49 in the amendments, which requires the immigration minister to, as soon as practicable after each 30 June, cause a report to be prepared about the operation of this new division, which sets up the preventive detention regime and the community safety order regime, during the year ended on that 30 June. The clause in the amendments gives some level of detail about what that report must include. This is an annual report that will need to be tabled by the immigration minister to provide a level of transparency around the operation of this regime. Subsection 2 of the clause says that report must include the number of each of the following:

(a) applications for each kind of community safety order made during the year;

(b) each kind of community safety order made during the year;

(c) applications for review of each kind of community safety order made by serious offenders during the year;

(d) applications for review of each kind of community safety order made by the Immigration Minister, or a legal representative of the Immigration Minister, during the year;

(e) each kind of community safety order affirmed during the year;

(f) each kind of community safety order varied during the year;

(g) community safety orders revoked (including by operation of this Act) during the year.

So the very amendments that we are moving require an appropriate level of transparency from the immigration minister each and every year about the operation of this regime, but they do so in a workable manner that won't jeopardise, for example, the potential resettlement of some of these individuals.

As I said in my earlier contribution, one of the reasons we are in this situation is that, the entire time he was the Minister for Home Affairs, Mr Dutton failed to resettle any of these individuals. We know that the former government had a policy of not taking up the resettlement deal that was on offer from New Zealand, for example. That belligerence and that refusal to work with other countries around resettlement is one of the reasons some of these individuals remain in detention. We don't want to jeopardise that by providing some of the information that Senator Cash's amendments require.

I will take you through the Senator Cash's amendments. Proposed section 76G(1)(a) and (b) in her amendments would cover only those visas granted between 8 November, being the date of the High Court decision, and 18 November, which is the commencement date for the Migration Amendment (Bridging Visa Conditions) Act 2023. Proposed section 76G(1)(c) would cover all grants under regulations 2.25AA and BB. I noted that regulation 2.25AA existed prior to NZYQ, and this provision could be interpreted so as to apply to any visa ever granted under regulation under 2.25AA, noting that that provision was inserted in 2013 and has been used for noncitizens outside the NZYQ cohort. Proposed section 76G(2)(f) requires the minister to table information about the basis on which there is no real prospect of removal. There are legitimate concerns that the minister being required to provide information about the potential refoulement of a noncitizen or the noncitizen's protection claims could further jeopardise removal efforts.

As I say, one of the problems that we're dealing with at the moment is the failure of Mr Dutton to resettle any of these individuals that we're talking about. The last thing we want to do is jeopardise the potential future resettlement of any of these individuals by requiring the minister to provide information which could jeopardise those removal efforts. Similarly, providing details of how and why a person cannot be removed would have potential adverse impacts on the relationship between Australia and relevant countries who have been approached and/or the noncitizen's home country. This could also prejudice future negotiations on issues, including on returns, and it could also affect Australia's international relations. Proposed section 76G(3) provides that the statement—that Senator Cash's amendments require—must not include personal details about the noncitizen. However, the breadth of information required to be given under 76G(2) would be so broad as to easily enable the identification of the noncitizen. For example, the person's immigration history would presumably include previous dates of entry and departure from Australia. These significant issues with releasing information that would potentially identify them may therefore constitute a breach of the Privacy Act requirements. Listing country of origin or citizenship is sensitive because some are from very small countries, but for some the nature of the crime and other elements being specified by the opposition would also potentially allow for the identification of the person being released.

It's for these reasons that we'll be opposing the amendments. We're trying to strike the right balance in terms of transparency by requiring the immigration minister to table that annual report that's required under clause 395.49, but we think it would be impracticable and unworkable and could jeopardise future removal efforts if we were to agree to the amendments being moved by Senator Cash.