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

():  Again, I am really surprised that the shadow Attorney-General, someone who aspires to be the Attorney-General of this country—the first law officer of this country—and, indeed, who has already been the Attorney-General continues to make an argument that the Australian government should not comply with a High Court ruling. It's an extraordinary proposition that Senator Cash has been advancing over the last few days. I can understand it, given that Senator Cash served in a government that delivered us robodebt, an illegal system. We know that Senator Cash has a history of not personally cooperating with law enforcement when it comes to police investigations. A deputy commissioner of the Australian Federal Police said as much in estimates a few years ago.

I know Senator Cash is defensive about that, but it's there for all to see. Senator Cash and the coalition have never followed the rule of law. I notice that a former Attorney-General, Mr Brandis, recently had something to say about the need for governments to follow the rule of law. Sadly, it would seem that Mr Brandis's view is not upheld within the current coalition.

Mr Dreyfus, an Attorney-General who does believe in complying with the law, issued a statement today. I might just read from it so as to clarify this situation once and for all. Mr Dreyfus said:

The Government is committed to protecting the safety of the community and acting in accordance with the law.

Our response to the High Court's decision in—

the NZYQ case—

has at all times been guided by these fundamental principles.

The High Court determines the meaning of the Australian Constitution—not politicians.

The High Court has held that, if a non-citizen has been refused permission to remain in Australia, and there is no real prospect of removing them from Australia in the reasonably foreseeable future, the non-citizen cannot lawfully be held in immigration detention …

That finding was in the NZYQ case. The statement continues:

In NZYQ, the High Court made a decision that did not only apply to the plaintiff in that matter. Rather, the Court set a new limit on the Parliament's power to make laws requiring or authorising the detention of any non-citizen who is relevantly in the same position as the plaintiff …

As a result of the High Court's decision, the continued detention of any NZYQ-affected person would be unlawful.

That is what Senator Cash seems to be arguing that we should keep doing. Mr Dreyfus went on to say:

The Department of Home Affairs undertakes expert assessment of whether a person is an "NZYQ-affected person". If and when it is clear that a person in immigration detention is an NZYQ-affected person, the Department must immediately take steps to secure the person's release from detention. There is no legal basis on which the Government can delay releasing the person until, for example, a court orders the person's release.

Moreover, whether a person is required to be released turns solely on whether they fall within the limit identified by the High Court's order in NZYQ—and not, for example, on their personal circumstances including any criminal history they may have.

It is a fundamental principle of our system of law that the government cannot deprive a person of their liberty without positive authority conferred by law. Following the High Court's decision in NZYQ, there is no power to detain the affected non-citizens under the Migration Act. There is no power for a minister to direct an officer to detain the affected non-citizens.

For these reasons, any delay in releasing an NZYQ-affected person could expose the Commonwealth and individual officers to liability for (among other things) false imprisonment. Any officer who continues to detain a person who they know is an NZYQ-affected person may also be acting in breach of the APS Code of Conduct and be liable to disciplinary action as a result.

So every time Senator Cash and her colleagues continue mounting this argument that the government was not required to release the people that we have released, what she and the coalition are effectively saying is that the Australian government should continue detaining people that we have no legal right to detain.

The High Court has made the law clear and governments, I would have thought, should follow the direction of the High Court. I think it is slightly concerning that the opposition are suggesting that the kind of government they would operate would be one that would ignore the High Court and would detain individuals without any legal power to do so. That is a very worrying suggestion, and I would urge Senator Cash to reconsider that position.

While I'm on my feet, I might just point out that Senator Cash, Mr Dutton and their colleagues have made a lot of hay over the last few weeks about the individuals we are talking about. You would think that their record in government around immigration detention has been without blemish and that they never exposed the Australian public to any risk. Well might I remind the opposition that their record was somewhat different to how they might like to remember it. The New Daily in April 2018 reported:

Detainees at immigration detention centres on Australian shores have successfully escaped more than 80 times since July 2013, government figures reveal.

… the total number of detainees who escaped detention during the period would be higher because some reported incidents have involved more than one person.

So even in 2018, five years into the coalition government, there had been more than 80 escapes from immigration detention centres. So for people who want to come in here and be holier than thou about saying that their record was blemish free and they never exposed the Australian public to any risk, well, the facts don't actually back that up.

In January 2018 it was reported that two men escaped from Melbourne immigration transit accommodation detention facility in Broadmeadows, north of Melbourne, on New Year's Eve. In 2014, in the early period of the coalition government, when Mr Morrison was still the Minister for Immigration and Border Protection, it was reported that 'an underworld figure capable of extreme violence was on the run after escaping from the Victorian detention centre he was being held in as he awaited deportation from the country. The Minister for Immigration and Border Protection, Scott Morrison, confirmed the breakout.' He confirmed that two adult male detainees absconded from the Maribyrnong detention centre earlier today with outside assistance. So let's not pretend that the detention regime that was overseen by Dutton, Mr Morrison, Senator Cash, all of the coalition, was some perfect system that never exposed Australians to risk. Those are just three examples where we saw escapes—in some cases, we saw mass escapes—from immigration detention under the LNP. I think we should all recognise the kind of wild claims that have being made over the last few weeks by the coalition as base politics, because we know the thing they are best at is playing politics, dividing the Australian community, injecting fear into the Australian community rather than working constructively to keep the Australian community safe.