Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

My question is to the Minister representing the Prime Minister, Senator Wong. Yesterday the High Court overturned a 2004 judgement which has underpinned the migration policies of governments of both sides for the last two decades. The immediate consequence was to order the release from immigration detention of a non-citizen convicted of sexual intercourse with a child aged between 10 and 14 years, the victim being a 10-year-old boy. The government's own submissions made clear that the government may now need to release around 92 individuals, many of whom until now have not been permitted to enter the Australian community on character grounds. What steps is the government taking to protect the Australian community?

Penny Wong (SA, Australian Labor Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

Obviously, the government notes the ruling of the High Court yesterday. We are considering the implications of the judgement carefully and will continue to work with authorities to ensure community safety is upheld. I'm advised that the decision of the High Court does overturn a 20-year precedent and could trigger the release of a number of people from detention. Obviously, the government will work through this decision. I am advised that the individual released following the decision of the High Court has been placed on a visa arrangement with strict conditions, as you are aware.

They include various requirements in relation to reporting and personal details and other strict requirements.

What I would say is that this is obviously a judgement that has significant implications. I can assure the Senate that this government will continue to work with authorities in our response to this decision to ensure that community safety is upheld. When I am in a position to advise further about the government's response to this decision, I will advise the Senate.

Sue Lines (President) Share this | Link to this | Hansard source

Senator Cash, first supplementary?

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

The Australian Human Rights Commission made submissions, appeared in the case and argued that the 2004 authority should be overturned. It now has been, and the plaintiff will be released. Was the Human Rights Commission's participation in this case specifically approved by the Attorney-General, and how much Commonwealth money was spent arguing for the plaintiff's release into the Australian community?

Penny Wong (SA, Australian Labor Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

I'm not aware as to the details of the intervention in the case, nor am I aware as to whether or not the Human Rights Commission requires, for the exercise of its statutory functions, the permission of the Attorney-General. I would suggest that's probably unlikely, but I will ascertain whether in fact that is a requirement. But it is obviously an independent statutory body which is there, and has been there under both parties of government, to advocate within its remit.

I'd say more broadly that obviously this is a case that has overturned 20 years of precedent. We are examining it carefully, and I again assure the Senate and the Australian people that paramount in our response will be community safety.

Sue Lines (President) Share this | Link to this | Hansard source

Senator Cash, second supplementary?

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

The individual concerned was a noncitizen convicted of sexual intercourse with a child aged between 10 and 14 years, with the victim being a boy aged 10. In relation to the 92 people who may now need to be released, how many of them had been denied entry into the Australian community on character grounds; and, without commenting on any specific case, what type of offences had they committed?

Penny Wong (SA, Australian Labor Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

I don't have that information to hand, Senator Cash. I would make this point: I understand this is a serious matter, and community safety is serious. But let us also remember that this is the High Court of Australia. The High Court of Australia has made a decision, which you would be bound by were you on this side. You would also be required, as this government is, to work through the implications of that decision, recognising the overturning of precedent, the arrangements which governments will have to put in place and the implications not only for that cohort but more generally. I again say that this government, in dealing with its response to this, will have at front of mind the imperative of assuring the safety of the Australian community.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

My question is on the same topic, and it's to the Minister representing the Minister for Immigration, Citizenship and Multicultural Affairs, Senator Watt. Minister, in light of the High Court decision yesterday that effectively ruled that indefinite immigration detention is constitutionally unlawful, and given the Solicitor-General said to the High Court during the hearing that, if the court ruled in the way that it did, people within the scope of the ruling—and I quote from the Solicitor-General—'will need to be released immediately into the community', firstly, exactly what is the government doing to comply with the implications of this decision; how many people within the scope of the ruling have been released from immigration detention since the decision was handed down; have you now, as you must, immediately released all stateless people from immigration detention; and how many people within the scope of the ruling currently remain unlawfully in immigration detention?

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

Thank you, Senator McKim. Obviously, Senator Wong has addressed a number of the issues contained in Senator McKim's question, but, to elaborate and specifically answer Senator McKim's question, I'll come to what we're doing about those matters. But I want to reinforce the point that the government's priority is the safety of the Australian community, and we think it's very important to ensure that, in managing this issue, that remains front and centre.

As you would know, I expect, Senator McKim, the decision of the High Court was released only yesterday afternoon. The High Court has not published its reasons for the decision yet. As soon as we receive those reasons, we will obviously be obtaining the advice of the Solicitor-General as to the implications of that decision for the other people in detention who it may affect. It is important that we receive those reasons and give them due consideration before we take the next steps that the decision would require.

To my knowledge—and I emphasise 'to my knowledge'—the only person who is affected by this decision who has been released at this point in time is the plaintiff in this particular decision. To my knowledge, none of the other people who whom the decision may relate have yet been released into the community. As I say, we are awaiting the reasons for the decision and the Solicitor-General's advice on that decision before we can make decisions about any further releases that may or may not occur.

I'd also like to say—

Hon. Senators:

Honourable senators interjecting—

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

We're not a government that acts on decisions that haven't had reasons released. We're not a government that acts without legal advice to underpin our actions. What I can also say is that, where serious offenders are released from immigration detention, state and territory authorities are notified, and I understand that that has occurred in relation to the individual who has been released.

Sue Lines (President) Share this | Link to this | Hansard source

Senator McKim, first supplementary?

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Minister, what part of the words 'High Court of Australia' do you not understand? The ruling was abundantly clear. Where there is no real prospect of someone's removal from Australia becoming practicable in the reasonably foreseeable future, they are being unlawfully detained. Have you got an argument with the High Court of Australia ruling? If not, why are you not getting to work now and ensuring that all people within the scope of that ruling are freed from the unlawful—

Sue Lines (President) Share this | Link to this | Hansard source

The time has expired. Minister Watt?

Senator McKim, I advised you that time had expired. I expect you to sit down. Minister Watt.

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

Senator McKim, I'm not sure if you're aware of this, but the case that was decided by the High Court yesterday was a case brought by one individual, and that decision of the High Court relates to that individual. The government has acted on the basis of the High Court's decision by releasing that individual into the community as required by the High Court's decision, with the protections around it in notifying state and territory authorities and all of the other protections that the community would expect.

In terms of how it relates to other individuals who are in detention, we cannot act on that decision until the reasons of the court are received and we receive legal advice as to how that decision relates to the other people involved. Once we receive the High Court's reasons, which go beyond that individual plaintiff and shed light on the application of that decision to other individuals, we will take what action is required, but the case related to that one individual, and we've taken the action required in relation to that individual.

Sue Lines (President) Share this | Link to this | Hansard source

Senator McKim, second supplementary?

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Sounds like it's 'the vibe' of it, not the actual Constitution. Minister, will the government rule out trying to perpetuate indefinite immigration detention in this country by legislating its way around the High Court's decision?

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

Again, good governments rely on the reasons of court decisions to make decisions, and this government, being a good government, intends to do that. Once they are received, we also intend to seek legal advice from the Solicitor-General about the implications of those reasons and how they relate to other individuals who may be affected. The government will not be introducing rushed legislation that could exacerbate legal challenges; we've already seen the consequences of that in other matters where legislation that was introduced by the former government was found to be unconstitutional. So we'll be taking a considered approach to this to make sure that whatever action is taken is legally enforceable and complies with the law, because that's what good governments do. We're not all into stunts. We're not all into grandstanding. Some of us here are here to run good governments that abide by the law and abide by the High Court. (Time expired)