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

In my opening comments in the committee stage, I want to talk through the amendments that the Leader of the Opposition this morning put forward to the Acting Prime Minister, Mr Richard Marles. We put forward a series of amendments. In fact, there were six policy proposals that we put forward. In the first instance, why did we do that? As I said in my speech earlier today, the coalition has always believed that the first priority of the federal government is to ensure the nation's security and defence. At 7.15 this morning, when Senator Paterson, Mr Tehan, Mr Dutton and I were first presented with the legislation that is now before the Senate, it became apparent on first glance that there were serious deficiencies in relation to the areas where amendments were then put forward. So, in a constructive manner, the coalition went away and had a further look at the explanatory memorandum and the proposed legislation, and we were able to come forward with six policy proposals that we have presented to the government. I will read through those policy proposals shortly.

The government would understand and would indeed acknowledge that, unlike the opposition, the government have the benefit of the Attorney-General's Department and the drafters and the lawyers within the department—all very good lawyers, I may add as a former Attorney-General—and they also have the benefit of the Solicitor-General. So, whilst we were able to provide the government with the initial drafting of the amendments, the government have chosen to take on board those amendments, and they themselves will now be presenting five of the six amendments to the chamber. As I said, they have the benefit of the Attorney-General's Department, the lawyers within the Attorney-General's Department and the Solicitor-General. We appreciate that. We understand that the amendments are currently being drafted by the government, and they will be presented to the chamber later on this evening.

If I could briefly go through the amendments: the first one was an amendment in relation to making curfew and electronic monitoring conditions mandatory and not discretionary. If you go to page 41 of the explanatory memorandum, it takes you through some new discretionary conditions that will be imposed by the government. But, if you go to page 15 of the explanatory memorandum, you will see a number of mandatory conditions that are now going to be imposed by the government. The question that we had was: if you truly believe in keeping Australians safe, what is the reason that the curfew and the electronic monitoring conditions are not mandatory? The amendment that we put forward would see the government make the curfew and electronic monitoring conditions mandatory and not discretionary. As I said, we put forward the policy proposal. The government has had a look at it. The proposal that is coming back to us is not as strong as our proposal, but, as I said, we support the intent of what the government is doing with our proposal, and we will be supporting the amendment.

In relation to amendment No. 2, we put forward a policy proposal requiring a visa holder not to perform work or participate in any regular organised activity that involves contact with children, other than contact of a minor or incidental nature. Currently, this is permissible with the minister's permission. This is in relation to condition 8613. Again, if you take this seriously and if you do believe your No. 1 responsibility to Australians is to keep them safe, then we would say that the policy proposal that we have put forward—for them not to perform work, as opposed to being able to seek the minister's permission to perform work—is an appropriate one.

In relation to amendment No. 3, we again put forward a proposal, because it was seriously lacking in the bill, to require a visa holder not go within 150 metres of a school, child care or daycare centre. Why would we do that? When you have a look at the nature of the offences that were committed by the people that are now out on our streets, the plaintiffs themselves, one of them has been convicted of raping a 10-year-old child. They're also murderers, contract killers and those that have perpetrated the most vile domestic violence offences. I have to ask the government: on what planet do you think this should not be included, in particular when you say the purpose of many of your amendments is to support community safety? I would have thought the amendment we have put forward and the policy proposal we've put forward to the government will do that.

In relation to the fourth policy proposal we put forward, ensuring each day of a breach of a visa condition is treated as a separate offence rather than a single continuous breach, I was surprised when I went to page 14 of the explanatory memorandum, point 59, in relation to the application of the Crimes Act. It states:

… that an ongoing breach of a condition to do an act or thing within a specified period or by a specified time will constitute a single offence, rather than multiple offences for each day in which there is a failure to comply.

The proposal we put to the government is to ensure that they are treated as separate offences rather than a single continuous breach. We've had discussions with the government in relation to the effect that would have on a minimum mandatory sentence, and I understand that a compromise was reached. Again, we thank the government for working with us and for the compromise I understand will be delivered to the chamber later this evening.

In relation to amendment No. 5 in the policy proposal we put forward and the drafting of the amendment we put forward to the government, if the visa holder has been convicted of an offence involving violence or sexual assault, it would allow the minister to impose a condition requiring no contact with the victim or the victim's family. A decision to impose a no-contact condition is one that we believe is appropriate. Again, the government say they've put forward the strongest conditions they could avail themselves of, but, when Senator Paterson and I reviewed the conditions, we believed that there was certainly room for improvement. In relation to those five amendments, Mr Dutton presented the policy proposals and drafting to the Acting Prime Minister at the time, Mr Marles. Obviously, Mr Marles made a statement in the House of Representatives today, and Senator Wong followed that statement that Mr Marles made with a statement in the Senate. As I said, the government, having the benefit of the Attorney-General's Department, having the benefit of the legal drafters in the Attorney-General's Department and certainly having the benefit of the Solicitor-General's advice, has undertaken to look at the drafting and provide us with new amendments reflecting the policy options we have put forward in the discussions that Mr Marles and Mr Dutton have had. We look forward to seeing those amendments later this evening and to the government supporting those amendments as they will be putting them forward.

In relation to amendment No. 6, this is to establish a mandatory minimum sentence for the offences in the bill. The one thing that really stood out when Senator Paterson and I reviewed the bill and the explanatory memorandum is that the sentencing options that the government had placed in its initial drafting did not exclude anything else—in other words, for example, could you get a suspended sentence? It was a maximum sentence, yes, but there was no mention of a minimum sentence or the exclusion of lesser penalties. I'm pleased that Mr Marles made the statement in the House of Representatives because I know that the Prime Minister would not have done this. I congratulate the then Acting Prime Minister for accepting that the Labor Party will vote for establishing mandatory minimum sentences.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

Senator McKim, on a point of order?

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

 Senator Cash is referring to amendments that have not been circulated and are not before the chamber. I ask you whether she is being relevant to the question before the chamber or she is in fact pre-empting a matter that the chamber is yet to be aware of.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

I have been listening carefully to Senator Cash. She is referring to policy positions that she will be seeking to have amended, so I think it is relevant.

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

I congratulate the Acting Prime Minister and the Labor Party, in the absence of the Prime Minister, for agreeing with the coalition's proposal to impose a mandatory minimum sentence. Certainly we believe that this shows the outmost—

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

Senator McKim?

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

It's the same point of order. Senator Cash is now clearly referring to the Liberals' proposal to make an amendment in regard to mandatory minimum sentences, which obviously is against Labor Party policy, but we'll leave that aside for now. I again ask you to make a ruling on relevance.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

Firstly, we are in committee and the committee is a free-ranging debate. Members in this instance can even flag they will amend, Senator McKim. I think the member is entitled to speak as the senator has done in this instance.

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

It shows the outmost seriousness with which we take the requirements to comply with the conditions for each offence, and in relation to that we believe that a minimum mandatory sentence is appropriate.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

Senator McKim, I will give priority to the minister. I note that you wish the call, and I will give you the call next.

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

I won't be terribly long, so Senator McKim will have an opportunity to say something. I want to briefly respond. I welcome the constructive discussions that have occurred over the course of today between members of the government and members of the opposition. This has been a challenging episode for all Australians to deal with, with the High Court making the decision that overturned 20 years of accepted precedent. As is obviously known, the government introduced legislation to deal with the matter today. The opposition raised a number of issues that they thought needed to be addressed. We've always made clear that we wanted to ensure that we could deal with this issue as quickly as we possibly could, and we were willing to work with the opposition to address some of the issues they raised in order to have legislation passed so as to deal with this issue as quickly as possible.

One of the other things we've had to take into consideration was the constitutionality of any legislation that was introduced or further amendments that were considered. It has been somewhat more difficult to prepare legislation and ensure the constitutionality of any amendments in the absence of the full reasons from the High Court, but we consider that it is a matter of national priority and in the national interest to ensure that legislation is introduced and passed that keeps the safety of Australians paramount. That has been one of our concerns all along through this process. I know we've heard a number of comments from the Greens party, and will no doubt continue to do so tonight, that suggests that we should not be doing what we are attempting to do in this legislation, but the simple fact is that at least the Labor Party, and it would appear the coalition parties, do recognise we do have an obligation to the Australian people to keep them safe. There are a number of people who have been released who have serious criminal records, and we owe it to the Australian public to act as quickly as we can to maintain the safety of the Australian population. That's why we have moved quickly in preparing and introducing this legislation. We have been willing to work with the opposition to pass this legislation as quickly as possible so as to assure Australians of their safety in the wake of this High Court decision which, as I said, overturned 20 years of legal precedent.

I thought it was worth putting some context around what is happening here. As I say, it's been a little difficult to prepare this legislation in the absence of the reasons. But some of us do take our responsibility for national security and community safety seriously, Senator McKim. It's a matter for you and your party as to whether you place weight on that whatsoever. I look forward to us being able to consider this legislation and pass it as quickly as possible, so that the matter is dealt with.

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

What an extraordinary contribution we've just heard from Minister Watt, wringing his hands about how difficult it has been to craft this legislation in the absence of any published reasons from the High Court. Precisely, Minister! It has been difficult, which begs the obvious question: why are you jamming it through in such an unholy rush today? Why are you trampling over hard-won rights and freedoms in this country, rights and freedoms that many Australians have fought and died to protect and enhance through our nation's history, including members of my family, I might add? They fought and died to protect these rights and freedoms, and you come in here in a craven display of political cowardice because you can't stand the heat that's coming from Mr Dutton, the Liberal Party and the Murdoch press.

This is the Tampa debate all over again, and this legislation is Prime Minister Albanese's Tampa moment. Just as John Howard confected an emergency when the MVTampa hove over the horizon, so has the Leader of the Opposition, Mr Dutton, confected an emergency post the High Court decision. Just as the Murdoch press cheered on Mr Howard in his xenophobia back in the days of the Tampa, so has the Murdoch press cheered on Mr Dutton, his confected emergency and his demonisation of refugees, something that he has built a political career on. Just as the Labor Party collapsed in the most craven way imaginable under Mr Howard's pressure when the MV Tampa hove over the horizon, so has Mr Albanese collapsed in the most craven, disgraceful way under pressure from Mr Dutton.

Not only has that pressure driven the Labor Party to legislate in such unseemly haste that we've now got a minister up wringing his hands about how difficult it was to do it so quickly; it's got a lot worse today. We now know that the Labor Party is walking away from its election policy—its clear election policy—that it doesn't support mandatory sentencing. When you read that policy in the Australian Labor Party platform, it actually spells out why Labor doesn't support mandatory sentencing. You know what? They're very good points. They are very good points excellently made by the members of the Labor Party. How would you feel tonight if you were a member of the Australian Labor Party? You would feel gutted, because tonight the political representatives of the Australian Labor Party have sold out to the Leader of the Opposition, Mr Dutton. They haven't only sold themselves out; they've sold out every single member of the Labor Party who agreed on a Labor platform that does not support mandatory sentencing.

Let's make no mistake about what this bill does. This bill makes the minister into someone who can impose arbitrary punishment and arbitrary detention on innocent people: no judge, no jury, just the minister. The minister can insist that people don't leave their home. He can impose a curfew, and I do have a question for Minister Watt: is the minister able under the provisions of this act to impose a 24-hours-a-day, seven-days-a-week curfew on someone? If that is not a power that exists under this act, what is the minimum amount of time in a 24-hour period that the minister will have to allow someone to leave their home? What we're talking about here is home detention. What we're talking about with electronic monitoring is electronic detention. This is command and control, colleagues, brought to you by Mr Dutton and brought to you by the Australian Labor Party, who are too craven and too cowardly to stand up to Mr Dutton and his cheerleaders in the Murdoch press.

So, it's really critical that folks understand what is happening here. The High Court of Australia has made a decision, and it has made a decision quite rightly and, I have to say, in an extremely belated fashion, following a shameful decision by the High Court many, many years ago. The High Court has finally righted that terrible wrong, and they have effectively ruled that people can no longer be held indefinitely in immigration detention on the whim of a minister.

And I want to say this to people: I don't believe that Australians want to live in a country where a politician can impose a sentence of imprisonment, or effective imprisonment, on somebody—not the courts, not a judge, not a jury, but a politician—and at times, up until last week, impose an indefinite sentence of imprisonment on somebody. I believe, and the Greens believe, that Australians respect the rule of law. I and the Greens believe that Australians respect the separation of powers. And do you know what? That's really what the High Court found last week, because that wasn't a decision based on the Migration Act; that was a decision based on this document called the Constitution. Maybe the Liberal Party and the Labor Party have heard of that—the Constitution of our country. The Constitution is very clear that imposing punishment on citizens is the job of the courts, not the job of politicians. That's why I think these amendments, which will almost certainly find themselves in the High Court at some stage in the future, are likely to be struck down.

I cannot recall a government that has allowed itself to be dictated to by an opposition to the degree that we have seen today.

As Senator Hanson-Young is pointing out, Senator Cash is now the one explaining to the chamber what the amendments will be—even though, I might add, those amendments still haven't been circulated, or at least they hadn't been when I got up to begin my contribution.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

No, they haven't.

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

Still haven't got 'em, I'm advised; still haven't got 'em. And if you want to talk about legislating on the run, or legislating on the fly, what a prime example this is. I would have loved to be a fly on the wall in the Labor Party caucus, in there this morning.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I don't think they had a caucus.

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

They didn't have a caucus. Maybe Labor didn't never didn't have a caucus. Maybe the caucus hasn't had a chance. Again, I wouldn't know.

But the point here is that this is not the Labor Party legislating because they're scared of the impact on the community. This is the Labor Party legislating because they're scared of Mr Dutton and the Murdoch press. That's what's going on here. And I've never seen a government allow itself to be dictated to by an opposition, even to the extent of these mythical amendments that have been flagged but not yet circulated, which allegedly we're going to debate tonight and which the opposition has forced onto the Labor Party. I've never seen that in my two decades plus in politics: an opposition effectively becoming the government in such a short, terrible week in which we have dealt with this issue as a country.

There's been a lot of talk about community safety. Do you want to know what the real danger to our community is? It's legislation like this. Legislation like this is a danger to our community, because it is a couple of steps too far down the pathway to tyranny.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

Thank you, Senator McKim. I'm giving the call to the minister, because a question was asked in Senator McKim's contribution. I note that Senator Hanson is seeking the call, and Senator Paterson. So, I intend to go to Senator Paterson and then give the call to Senator Hanson. Minister.

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

There was obviously a whole lot of rhetoric in there from the Greens party and only one question. I won't deal with all the rhetoric from the Greens party, but I certainly and utterly reject the suggestion that what we're doing here is empowering a minister to imprison someone, which Senator McKim either expressly alleged or certainly implied. That is utterly wrong. But what would you expect from the Greens party? They've never seen an opportunity to exaggerate a situation that they haven't taken.

The question that was buried deep within the Greens party rhetoric, as I recall, went to the point about the minister's ability to set curfew times, effectively. The question was whether the minister had the power to impose a curfew of 24 hours on one of the people concerned, and the answer to that question is no. I refer Senator McKim to the bill itself—not to the amendments—which deals with the curfew power. Item No. 8620 on page 16 of the bill deals with the curfew power. Essentially, it says that the times that the minister can impose must not be more than eight hours apart. That answers Senator McKim's question.

While I'm on my feet, I might take the opportunity to say that the reason the government is acting on the situation is that, as a result of a High Court decision which overturned 20 years of precedent, we now have a situation where a number of people have been released from detention, including convicted rapists. According to newspaper coverage that I've seen, there are some other very unsavoury characters. While, in the short time that we've had since the High Court decision, the government has taken as much action as was possible to place restrictions around the activities of those people, it is our view that more needs to be done to keep the Australian people safe than to simply take those steps that we have.

If Senator McKim and the Greens party want to tell the Australian public that it's completely fine not to take further steps to limit the movements and activities of the types of people we're talking about, then I'll let him go have that debate with the Australian community. But the government, the Labor Party, have a different view. We've said that we want to get this legislation passed as quickly as we possibly can. Given the Greens party made it clear from the outset that it has no interest in working with the government to protect the Australian people in the way that we think should happen, the obvious option is for us to seek agreement with the opposition. That's why a lot of work has been undertaken over the course of today, in particular, to come up with legislation that can be passed by both chambers of this parliament so that we can take additional steps that are necessary and that the Australian community expects us to take as a government to keep them safe. That's why we hope to have this legislation passed tonight.

James Paterson (Victoria, Liberal Party, Shadow Minister for Cyber Security) Share this | Link to this | Hansard source

I want to echo the sentiments expressed by my colleague Senator Cash earlier in thanking the government for agreeing to the six principles that we set out to strengthen this bill to make sure that the most robust protections are in place for the community from the people who have been released. I will have a question in a moment, but, before I do that, I want to flag a couple of things. I'm pleased that the government has agreed to assist the opposition with the drafting of these and with bringing them forward as amendments. I'm grateful that the government is going to move five of those six amendments. The opposition will be moving the sixth of those amendments, which is the one that relates to mandatory detention, but the government has also provided assistance to the opposition in drafting it. That is very helpful. I think this is an example of the way in which the major parties can come together in the national interest when it is necessary to do so to protect our national security and community safety. And we will ensure that this bill passes not just the Senate but also the House and that nobody leaves until this matter is dealt with and those protections can be put in place for the community, because that is what Australians would expect of us. Australians would not accept the idea that people who have committed very serious violent crimes, including sexual crimes and crimes against children, should be out in the community without any meaningful restrictions on them. This bill will, at the very least, impose some meaningful restrictions on them, and I'm grateful to that.

I want to move to my question, now, and I don't mean to totally spoil the bipartisan sentiment of my previous remarks, but, Minister, I do have a question for you. After we met with the government this morning, we put on the record our concerns that the bill was not strong enough and told the government that we intended to move amendments to strengthen the bill. The Minister for Home Affairs went into the chamber and said:

We are putting forward what are extremely tough conditions, and the legal advice that we have been given is that we are going as far as we can in order to manage the issues that are before us.

Since the minister made that comment, the government has agreed to the opposition's suggestions in six areas to further strengthen this bill. So was it true when the minister said in the House that the government had gone as far as you could go, or was this bill able to have been strengthened and improved by the suggestions that the opposition has now put forward?

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

The short answer is that, yes, the minister was being accurate in making those remarks, and, as I think has been pointed out to the opposition, our view is that the more amendments that are added to the legislation, the greater the constitutional risk. We have at all times tried to act in a manner that ensures that any amendments made to this legislation or to deal with this matter are constitutional. But we also recognise the need to move and get this legislation through.

We are satisfied with the constitutionality of the amendments that are being put tonight, but, as I've made clear, in the absence of reasons from the High Court, we are all doing the best we can, in compliance with legal advice, to ensure that any amendments that are being considered by the chambers are constitutional. It is possible that, once the reasons of the High Court are released, adjustments might be needed to these amendments to comply exactly with those reasons. But, of course, we don't think that it's tenable to wait until those reasons are completed before we do the very best we can, in terms of legislative amendments, to keep the Australian people safe.

James Paterson (Victoria, Liberal Party, Shadow Minister for Cyber Security) Share this | Link to this | Hansard source

I want to thank the minister for his answer and confirmation that the government believes that these amendments are constitutionally sound. I'm grateful for his cooperation.

I do have some process questions as well. The High Court handed down the order for the release of NZYQ at about 4.30 pm on Wednesday 8 November. How long was it in hours after that that NZYQ was released?

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

I don't have that information to hand, but we'll do our best to get it to you during the course of this debate.

James Paterson (Victoria, Liberal Party, Shadow Minister for Cyber Security) Share this | Link to this | Hansard source

Some of my questions which flow from that are consequential. It might be useful, it might assist you, if I read those out so that any answers can be collated and brought back to the chamber. After being able to answer how long it was in hours after the ruling was handing down that NZYQ was released, I'd would also like to know: when did you prepare the legal documents necessary to release NZYQ from detention, and were those documents ready on the day of the hearing? I'd like to know when you started to prepare those documents—when you started to prepare the instruments ordering his release.

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

Thanks, Senator Paterson. Again, we'll do our best to get that information back as quickly as we can. I note, by the way, that the amendments—at least the government amendments—have now been circulated, and I table a supplementary explanatory memorandum relating to the government amendments to be moved to this bill.

I should make the point, though, on this point about the constitutionality of the amendments, that I can't make it any clearer than to say that we are all acting here in the absence of the High Court reasons. But that is not to say that we should do nothing until we receive those reasons. These are amendments that have been brought to us by the opposition. We are willing to enact them, agree to them and, in some cases, move them, because we have as much confidence as we possibly can about their constitutionality. But we can't be absolutely certain of that until we receive the reasons of the High Court. The alternative, which is what the Greens party proposes, is that we don't do anything, and we don't think that is a viable option in the circumstances, given the nature of the people who have been released.

James Paterson (Victoria, Liberal Party, Shadow Minister for Cyber Security) Share this | Link to this | Hansard source

Yes, that's a very fair point, Minister, and I agree with you. It certainly would be unconscionable for the parliament to rise at the end of the year and wait until January, February, March or whenever it is that the High Court, in its wisdom, decides to hand down its reasons before we act, exposing the community to risk in the meantime.

I have some further questions. I seek an update on how many of the 92 individuals identified by the Solicitor-General and the High Court last week as being a possible cohort for release have now been released. I understand that earlier today it was 84 and that there are eight who have not yet been released. Is that still correct?

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

I'm advised that 84 people have been released, and that includes the plaintiff.

James Paterson (Victoria, Liberal Party, Shadow Minister for Cyber Security) Share this | Link to this | Hansard source

Thank you. As with my other questions, these may be ones that you need to seek information on and come back to the chamber with. I'm keen to know when you started to prepare the legal documents to release those individuals, when those individuals were granted bridging visas, and whether or not that occurred before or after they were released into the community.

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

We are happy to do our best to get that information for you as quickly as we can.

James Paterson (Victoria, Liberal Party, Shadow Minister for Cyber Security) Share this | Link to this | Hansard source

Thank you. How many more detainees does the government anticipate will be released and, if so, when?

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

Again, we'll need to gather that information for you, Senator Paterson.

James Paterson (Victoria, Liberal Party, Shadow Minister for Cyber Security) Share this | Link to this | Hansard source

Just to clarify, I'm interested in the eight remaining people identified in the cohort of 92 by the Solicitor-General and the High Court and also the other cohort of 340 that the Solicitor-General referred to in his evidence to the High Court. On that, I cede my time to Senator Hanson.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Minister, in light of what the High Court's decision was—that there's no indefinite time for detention of these detainees in the detention centres—is the government going to look at a time frame?

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

Sorry, Senator Hanson. Can I just clarify: are we willing to look at a time frame for what, exactly?

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

At the moment, the High Court has ruled that you cannot keep people in detention centres indefinitely. There's no time frame on it. Is the government looking at putting a time frame on when detainees can be kept in detention centres?

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

Senator Hanson, that issue, along with many others, probably can't be addressed or properly considered until we get the full reasons from the High Court. I guess what we're seeking to do with the amendments we're moving today is to put in place an interim step that offers greater protection to the Australian community than exists without the amendments. But, as I say, on that particular issue and many others, we'll need to wait until we get the High Court reasoning.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

My understanding of it is that the High Court said that as punishment you cannot keep them indefinitely. That's why they've been released from the detention centres into the public, which is a national security threat and a public threat. My understanding of that ruling is that you cannot really, in light of the High Court's decision, put anyone else into detention centres because that would come under the same ruling. Please correct me if I'm wrong, but my understanding is that anyone who is classified as an illegal in Australia cannot be put into detention centres because of the High Court ruling. That therefore means that anyone that comes to Australia illegally by plane or by boat then can't be put in detention centres because of the ruling of the High Court. Is it right that the Australian taxpayers must be responsible for them going into the public?

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

Senator Hanson, the situation isn't quite what you described. What we do know from the High Court's decision is that it applies to a very specific and relatively small group of people in immigration detention, not everyone who is in immigration detention and not everyone who is living in the community either. The decision of the High Court applies only to no-citizens of Australia for whom there is no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future and who are therefore not capable of being subject to immigration detention under certain sections of the Migration Act. In relation to the particular individual who brought the case which went to the High Court, the plaintiff in that case, that person is stateless. They are a Rohingyan refugee, and they don't have citizenship in any particular country because of the nature of disputes where they originally came from. That person has nowhere to be sent back to, just to put it simply.

Similarly, you will have read the coverage on the person from Malaysia who has either been charged with or convicted of—I'm not exactly sure which—issues around what seems to be an assassination. Because of the death penalty that exists in certain countries, Australia's position is that we don't deport people in that situation. That's been a longstanding policy of Australian governments of both persuasions. There's a particular group of people in immigration detention who for one reason or another cannot be deported from Australia. It's only those people to whom the High Court decision applies. But for other immigrants to Australia who may not have a right to be here, if there is a home country that they can be deported to, they can be held in detention and then deported. Hopefully that addresses your question. We're not talking about the entire group of migrants to Australia or those in immigration detention; it's only that relatively small number of people.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

Before you resume your seat, Minister, have you moved the government amendments?

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

If I haven't done so, I seek leave to move the government amendments together.

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

Point of order: have you asked whether leave is given to move the amendments together?

The TEMPORARY CHAIR: Yes.

No, it's not.

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

In that case, I move government amendment No. 1 on sheet QN100:

(1) Schedule 1, item 4, page 5 (after line 19), after paragraph 76B(1)(d), insert:

Note: Section 4K of the Crimes Act 1914, which deals with continuing and multiple offences, applies to this offence.

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

Minister, if I could go back to 8 November this year, which is when the decision itself was handed down. The High Court was asked to answer six questions, and aside from the question on costs every single one of the answers given by the High Court related specifically to the plaintiff. The High Court did not make orders releasing anyone else. Could I just get you to confirm that? And the writ to release was only in relation to plaintiff NZYQ. Could I get you to just confirm that as well?

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

That is correct, but of course the High Court, in the limited information it provided, also, if you like, set out a test that would apply for other people in a similar situation. But you're right: the orders were only in relation to that one plaintiff.

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

The High Court considered, I understand, a cohort of 92 individuals, and the writ was in relation to plaintiff NZYQ. In the absence of the High Court's reasons, which might contain nuance or be specifically tied to the facts of the case, can I just confirm that the reason that the additional 84 detainees were released—my understanding is it is now 84, as of today—was in fact because of your interpretation of what the High Court is likely to want?

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

Just to be clear, it's 84 in total, including the plaintiff, but the reason that those additional 83 people have been released is that their factual circumstances meet, if you like, the test that the High Court set, which was that they were noncitizens for whom there is no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future and who are therefore not capable of being subject to immigration detention.

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

In relation to the other individuals who have now been released, when did the government start preparing the legal documents to release those individuals?

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

I think we may have already taken that on notice from Senator Paterson, but, if it is a slightly different question, then we will obviously gather that information for you too.

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

Perhaps I will put four questions to the minister, in the event that we need to seek legal advice in relation to the answers to the questions. My question was: when did you start preparing the legal documents to release those individuals? When were these individuals granted bridging visas? Did this occur before or after they were released into the community?

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

I'm advised that all 84 people, including the plaintiff, were initially released without visas, as that was required to give effect to the High Court decision, but visas in all cases were granted within hours of their release.

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

Did you receive legal advice prior to releasing the additional 84 individuals from detention? The writ was issued in relation to plaintiff NZYQ. The government made an assessment that the additional individuals, you have said, fall within the test that you say was set by the High Court—and I don't mean to verbal you. But what advice did the government seek to ensure whether the released persons were actually to be released before you released them into the community?

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

What I'm advised is that, prior to their release, each person who has been released from immigration detention has had a full assessment done by the Department of Home Affairs against that test that was set by the High Court in its decision.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Who applied for the bridging visas for these people before they were released from detention?

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

The first point, Senator Hanson, is I'm not sure it's correct—in fact, because of the unusual circumstances here, where we had a High Court decision that effectively required these people to be released from detention, there was no application process. They didn't apply for visas in the way that people normally would. We had a High Court judgement which said that it was not legal to detain the plaintiff and a number of other people. We were required by that High Court decision to release them from detention, and visas were then arranged by the department—the minister granted each of those people a visa within hours of their release, without a formal application process in the way that would normally happen. I recognise that's an unusual situation, but that is as a result of the High Court decision.

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

Again building on the questions that Senator Hanson has asked you, we've had confirmation that the High Court did not make orders for the release of anyone else and we've had confirmation that the writ to release was only in relation to the plaintiff NZYQ. We've asked you questions about the balance of those who have now been released into the community, and you said that each one was subject to a full assessment by the Department of, I believe you said, Home Affairs prior to their release. On what basis were these people determined to be assessed? Have others also been assessed, and, if so, how many? How long did each assessment take? And I might get you to provide on notice—I accept you won't have it now—for all of them, the time that the assessment was undertaken and how long it took for each assessment. How many were released on day one and when, if you could answer those now? How many were released on day two and when? If you could answer those questions, we can get a full picture of the 84 and when they were actually released.

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

I will need to take that entire set of questions on notice. I don't have that information readily to hand. What I am advised is that, as I said earlier, the Department of Home Affairs assessed the facts for each of the people who may have been affected by this decision. The result of that assessment led to the release of 83 people in addition to the one plaintiff. The remaining eight, I think it is, of the original 92 have been fully assessed and determined to not meet that test, or those assessments are underway.

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

So, for the eight that remain, you've made the assessment and you've determined that they don't fall within the test that has been set out by the High Court. In relation to—

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

Their assessments have been either completed and determined to not meet the test or are still underway.

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

Can I just then confirm that, in relation to the 84, you were satisfied that each of them could not be returned to (a) their country of origin or (b) a third country, and that that question was answered as part of the assessment.

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

It is correct to say that the assessment of the Department of Home Affairs on which the minister relied was that those 83 people in addition to the plaintiff were noncitizens and that there was no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future. It may well be that, at some point further down the track, it will be possible for some of those people to be removed from Australia. What the court talked about was in the reasonably foreseeable future. Of course, should it become practicable, to use the wording of the High Court, to remove any of those people from Australia, then we would have the option of doing that, and that would occur.

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

For the benefit of the discussion we're having, what was the meaning given in terms of time frame to 'reasonably foreseeable future'?

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

As Senator Cash would be well aware, there is a legal definition of the term 'reasonably foreseeable'. In essence, and I understand this was also based on some of the commentary of judges within the case, it is impossible to set a particular time period of five days, ten days, ten months. It's a commonsense test. It's difficult to go beyond the legal definition of the term. There isn't a precise number of days or months.

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

I understand that there is not a precise number of days, months et cetera. Can I ask you to take on notice in relation to the 84: what was the assessment of time frame that the department utilised when making the decision in relation to each of the 84? Can you confirm whether or not legal documentation needed to be prepared in order to release each of the detainees—for example, some sort of order or instrument. If so, can you please provide the time when each of those relevant documents was prepared. If you have the information in relation to the first part of the question, though, was legal documentation required to be prepared in order to release each of the detainees?

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

It's probably safer if I take that one on notice as well. While I'm on my feet, can I provide further information to do with the matter of the granting of visas for people once they were released. All of the individuals who were required to be released by the High Court's orders have been granted Bridging (Removal Pending) visas with appropriate conditions, and law enforcement agencies have been notified of their release.

As a result of the High Court orders, the detention of individuals assessed as being in scope of the test set out by the High Court is no longer authorised. As a result, those individuals must be released from immigration detention as soon as practicable. Ordinarily, a person is released into the community from detention as the result of being granted a visa. Portfolio ministers have personal powers under section 195A of the Migration Act to grant a person in immigration detention a visa if the minister thinks it's in the public interest to do so. However, as detention is no longer authorised in respect of these individuals, the minister's power under section 195A to grant a visa to the individuals is not enlivened. Of course, complying with the orders of the court is not optional and we have to give effect to the decision made.

In order to comply with the High Court orders, individuals in the scope must be released from immigration detention as soon as practicable. All of the individuals required to be released by the High Court's orders have been granted Bridging (Removal Pending) visas with appropriate conditions, and law enforcement agencies have been notified of their release.

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

In relation to the use of the term 'as soon as practicable', what did the department consider to be 'as soon as practicable'?

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

Again, my understanding is that there were no particular time frames set so that they would have to be released within a certain number of hours, minutes, weeks or days, but I would imagine—and I'm happy to be corrected if I'm wrong here—that the way the department approached this was that, once the assessments of those individuals were completed and whatever legal or other formalities and paperwork were completed, then those people would be released straightaway because that was what the High Court decision required. I understand the plaintiff, for example, was released within an hour of the High Court decision being handed down. We're talking about hours, as soon as those procedural steps could be taken.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Since their release, I'd like to know who is paying the bill for their accommodation and their bridging visas. Who is paying for all this, and for how long is this going to happen?

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

Again, bearing in mind that there was no option but to release these people from detention given the High Court's decision, the Australian government has borne the cost of, for example, SRSS, status resolution support services, payments, and the Australian government has borne the cost of transitional housing for the people who have been released. Of course, it's worth also remembering that, had those people remained in detention, the Australian government would have borne those costs as well.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

In that case, if you've borne the expense of their accommodation, how long will the government be paying for their accommodation? What's the time frame?

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

I'm advised that the costs for transitional housing that are being borne by the Australian government last for 12 weeks. That is the position that has existed under governments of both sides of politics.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

My information, given to me from Australians who actually end up leaving prison after their crimes, is that they possibly may get two weeks of assistance. Some of them don't. They're shown out the door of the prisons, and then they actually have to go and find their own accommodation. They don't give them transport—absolutely nothing. You are saying that for three months the government will pick up the bill for these absolute animals in our society. That is appalling. Why is there such a disparity between Australians who actually have been released from prison and those in detention centres?

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

Obviously, decisions around the terms and payments that are made to Australian citizens when they are released from jail are a matter for state and territory governments because state and territory governments run the prison system and administer those types of payments. I don't know what amounts are paid by state and territory governments, and I suspect they probably differ between the states and territories. Again, I would remind you that had these people remained in detention, as was the intention prior to the High Court's decision, that would have been at the cost of the Australian government as well.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Minister, given this bill has been required because of the orders of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs, can you assure this chamber of whether or not this bill is consistent with the judgement in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs and the reasoning of the High Court?

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

As you're aware, we have very limited information from the High Court at this point in time on which to base decisions around the release of these individuals, the precautions we place around these individuals in their release, and the drafting of legislation. What we have attempted to do with this legislation—the original legislation introduced by the government and the amendments that have been proposed by the opposition, which are now being moved in some cases by the government and in some cases by the opposition—is to abide by that limited information that the High Court has provided, also taking into account other drafting principles and constitutional law requirements that sit outside that High Court decision.

I'm not sure if you were in the chamber, Senator Shoebridge, when I made the point that there does remain a degree of constitutional risk around the amendments that are being proposed, in particular around some of the further amendments the opposition has put forward, but our view was that the most important thing to do here was to pass legislation through the parliament which provided the Australian people with the level of protection that they would expect from their governments and from their parliaments, considering the background of some of the individuals who have been released. We believe that the amendments that we're proposing do satisfy these constitutional tests, but until we receive the reasons from the High Court there is obviously a level of constitutional risk around them. That doesn't mean we do nothing, because we think that, in addition to the precautions and the conditions that we've placed around the release of these individuals, further action is necessary to assure the Australian people of their safety.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Minister, you referred to the orders of the High Court and then to other information from the High Court. What is this other information from the High Court in relation to NZYQ that you're referring to?

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

I don't think I did say 'other information from the High Court'. What I think I said was 'other drafting principles'. Obviously, when legislation is prepared, whether it be on this or any other matter, we don't just take into account a particular decision or particular reasons of the High Court. As you would understand, there are general drafting principles and there is a whole body of constitutional law that goes to what parliaments can and can't legislate on. Those matters have been taken into account to the best of our ability, while recognising that in the absence of the reasons from the High Court there remains a degree of uncertainty. As I say, we don't think that that uncertainty should mean that the parliament does nothing.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Minister, isn't it true that in the absence of the reasons from the High Court, you're just having a stab in the dark about the constitutionality of this bill?

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

No, that's not correct, Senator Shoebridge, and I'm sure that that will be the first of many such suggestions from you. What we are doing here is presenting legislation and considering and accepting and in some cases moving amendments that have been brought forward by the opposition. We are acting on the basis of the best possible advice that we've been able to obtain about the constitutionality of these amendments. But I've repeatedly made clear, and I'll do it again now, that there does remain a degree of constitutional risk. The alternative, which seems to be the position of the Greens party, is that we don't move legislation and that, despite the efforts the government has made since this decision was handed down to protect the Australian people—put conditions around the individuals released, worked with state and territory authorities to ensure that people are monitored and other things—from the moment of the release of these individuals, we accept and have always accepted that there remains some risk to Australians' safety and that the government has an obligation to protect its people. I would have thought that all parliamentarians would see that as an important responsibility.

So, it's fine for you to come in here and effectively say that we shouldn't move until we have the reasons of the High Court and full constitutional authority and reasoning on which to act. We don't think this is a matter that should wait until that occurs.

James Paterson (Victoria, Liberal Party, Shadow Minister for Cyber Security) Share this | Link to this | Hansard source

Minister, thank you for your answer, a number of answers ago, in relation to that further information about exactly how the detainees were released, when they were released and when the bridging visas were granted to them. Just for the plain-English understanding of anyone watching, just so I'm clear: some people were released and then some time later visas were issued to them. In other words, there was a period of time in which they were in the community with no visas and therefore no restrictions?

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

I can't really add to what I said earlier on this matter. But everyone who's been released into the community has been granted a visa. That was done within hours of their release. And, as I said, there was a High Court decision requiring the release of these individuals.

James Paterson (Victoria, Liberal Party, Shadow Minister for Cyber Security) Share this | Link to this | Hansard source

What was the largest amount of time that elapsed between a detainee being released and a visa being issued to them?

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

I'd have to take that on notice as well.

James Paterson (Victoria, Liberal Party, Shadow Minister for Cyber Security) Share this | Link to this | Hansard source

A lawyer acting for some of the detainees, Mr David Mann, seemed to indicate that in some instances there were detainees who'd been released who had no visas for a couple of days. Is that correct?

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

Again, I've taken on notice the maximum period of time. I don't have any information one way or another on what Mr Mann has said.

James Paterson (Victoria, Liberal Party, Shadow Minister for Cyber Security) Share this | Link to this | Hansard source

When I put those questions to the Minister representing the Prime Minister, Senator Wong, in question time this week, she denied that there was any period in which people were released in the community without restrictions based on the visas that were issued to them. Can we rely on the minister's answer, or on what you've just told us?

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

I can't really add to anything I have already said on the matter, Senator Paterson.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

Minister, we've recently found out that over the last six to nine months the people who were left on Nauru, apart from the 11 who have shown up on a boat in the last two weeks, have been released off Nauru over that six to nine months. My estimation is that there are between 58 and 73 of them. Were they put in detention here? Were they brought from Nauru and put in detention here? Or were they let straight out into the streets?

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

Senator Lambie, I'll have to come back to you on that. Obviously the officials we have here tonight have been fully occupied working on this legislation, and they can assist me in providing answers to questions about the legislation, but your question obviously goes beyond this legislation. But I'm happy to come back to you on that.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

Are there any of those people who have been in detention who have been released now and had been there for less than nine months?

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

Again, I'll have to take that one on notice.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Minister, given that the published 2021 national policy platform for Labor and the draft 2023 national policy platform for Labor oppose mandatory sentencing, on the basis that it produces unjust outcomes and undermines the judiciary, why are you supporting the coalition's amendment to put in place a mandatory sentence and imprisonment of one year for breach of certain provisions of this bill?

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

As we've made clear repeatedly throughout this debate both today and on previous days, the safety of the community is of the utmost priority for the Albanese government. The opposition has flagged an amendment to mandatory minimum sentences in respect of those who breach the conditions of their visas. This, amongst other amendments, we believe is necessary to address the situation that's been presented to us by the High Court, and that's why we will be supporting the amendment that's being moved by the opposition.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

How are mandatory sentences, which your own national platform says undermine the judiciary and produce unjust outcomes, necessary for the purposes of this bill?

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

I refer to my previous answer.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Minister, do you acknowledge that the coalition's amendments that make the bill more punitive and more aggressive in terms of the punishments that can be delivered against refugees make it more likely that it will fail the constitutional test?

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

I'm not going to accept any proposition like that from you. I have on several occasions now outlined that what the government is seeking to do here is to address a situation which has arisen from a decision of the High Court. We respect the decisions of our courts and we deal with their implications. We have, as quickly as we possibly can, introduced legislation to deal with this situation. The opposition has indicated that they believe certain amendments are necessary to that legislation. We will do the utmost we can to have this legislation passed as quickly as we can, and that obviously requires working with the opposition to consider those amendments, because the Greens Party has demonstrated that they have no interest whatsoever in working with the government to address this situation. We don't believe that it is acceptable to let that situation continue if we're doing the most we possibly can for the safety of the Australian community.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Minister, you say that you 'respect the decisions of the court'. What does the decision in the most recent High Court case of NZYQ v the Minister for Immigration, Citizenship and Multicultural Affairs, which is the whole basis for you moving this bill, say about the constitutionality of your bill? You say you respect the decision, but you don't even wait for it.

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

The decision that the High Court handed down has very little to say about the constitutionality of these amendments because the High Court wasn't aware of the amendments that are being proposed. What the High Court said was that the noncitizens for whom there is no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future and who are therefore not capable of being subject to immigration detention needed to be released from detention. The government has done that out of respect for the High Court's decision, so, when I'm talking about having respect for the court's decision, that's what we've done. The High Court handed down the decision. We have implemented that decision. We have released each of the people who have been assessed as meeting that test from the High Court. But I've readily acknowledged that there's a degree of constitutional risk here. But, as I say, the alternative is to do nothing. That seems to be what the Greens party position is, and we don't believe that that's what the Australian people would expect from this parliament.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Minister, do you or those advising you understand the difference between 'orders' of a court and the 'decision' of a court, which is its judgement?

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

Senator Shoebridge, I know that in your very short time in this chamber you have established yourself as the smartest person in the chamber, and we repeatedly endure your demonstration of your superior intellect in the general chamber and in estimates committee hearings, but it may surprise you to learn that you're not the only person in this chamber who has legal qualifications.

Dean Smith (WA, Liberal Party, Shadow Assistant Minister for Competition, Charities and Treasury) Share this | Link to this | Hansard source

There is a point of order, Minister. Please resume your seat. Senator Shoebridge, a point of order?

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

The minister is required to answer the question, not to make his smug little character assassinations, like he was just doing then—his smug, nasty, personal slights. They are not in order.

The TEMPORARY CHAIR: Minister, have you finished your answer?

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

Senator Shoebridge, if senators were prevented from making smug and nasty remarks in this chamber then you would have very little to say.

The TEMPORARY CHAIR: Sorry, Minister—would you resume your seat. Senator McKim, do you have a point of order?

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

Yes, it is a point of order, and it's that personal reflections on another senator are disorderly, and Minister Watt should withdraw those personal reflections.

The TEMPORARY CHAIR: Thank you, Senator McKim. Senator Watt used exactly the words that Senator Shoebridge himself used, so if Senator Shoebridge and the minister would be kind enough to withdraw their remarks then we can move on.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

I withdraw.

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

I also withdraw. Leaving the free character assessment that's going on at the moment aside—Senator Shoebridge, I can assure you that, as someone who has practised law over a number of years, as have many other senators in this chamber, I very much understand the distinction between reasons and orders. We don't need you coming in and giving us a superior, intellectual lecture about things that many of us know very well.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

I was just wondering what number of those people who have been released were initially in detention because they were under the proviso of being a national security risk.

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

None of the individuals were considered to be a security risk in that way.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

I'm not quite sure you heard my question, sorry, Minister. Were they initially put in detention because they were classified as a national security risk or a security risk?

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

The short answer is no. There's an alternative regime that applies for people who are considered to be a national security risk—the preventive detention order. In general terms, the people who were in detention that this judgement applied to and that have now been released essentially failed a character test because they were convicted of other crimes or had been charged with very serious crimes, or because for some other reason they failed a character test, as opposed to the reasons you're putting forward.

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

I have two questions for you, Minister. Firstly, can you confirm that the discretionary conditions able to be applied to bridging visas R by the minister that relate to curfew and electronic detention are able to be applied to people who have committed no crime whatsoever in Australia? Could you confirm that one first, please? Secondly, Minister, I did receive some information from Minister Giles, and I want to place on the record that I thank him and his staff and departmental officers for their briefing this morning. Some information was conveyed to me around appeal rights. I just wonder if you wouldn't mind placing on the record the appeal rights in terms of judicial review, firstly, around the minister's decision to apply discretionary provisions. I'm particularly interested in the curfew and electronic surveillance conditions. Secondly, can you put on the record any judicial review that is available once the minister decides not to change or vary those conditions, having been asked. If I'm wrong, I'm sure you'll correct me. My understanding is: in regard to the minister's original decision, there is a judicial review available but not a merits review. It is simply a review in terms of a potential error in law that the minister might have made. However, if the minister refuses an application to remove or vary those conditions, that decision is appellable not only in terms of law but also on the merits of the decision. I'm wondering if you could step us through those judicial review provisions, please.

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

To your first question, the powers that you were talking about can be invoked for any of the people who have been released. I don't have the details of each of those individuals and whether they've all been convicted of a crime or not, but I would point out that the entire reason that those individuals were in detention in the first place was because they had failed a character test, because, in many cases, they had committed crimes. In some cases, there may have been other reasons—in all cases very good reasons—that they failed that character test. Because I don't have the factual circumstances of all 84 people, I can't give you information as to whether all of them have committed a crime and therefore are subject to these powers.

To your second question, I am advised that the decisions of the minister that are being presented in both the original legislation and the amendments are judicially reviewable. Does that—

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

The question was about merits review. Is it based on merits—

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

Yes—or error in law. Let me just take some advice on that. I'm advised that the original decision of the minister to impose conditions is judicially reviewable, so that goes to matters of procedure rather than merits. The decision the minister makes about that point can then be reviewed on both error-of-law grounds and merits grounds.

James Paterson (Victoria, Liberal Party, Shadow Minister for Cyber Security) Share this | Link to this | Hansard source

Minister, I want to follow up your answer to Senator Lambie before, when you said none of the people in this cohort represented a national security risk. Could you please clarify if any of the people in this cohort either are currently or were previously furnished with an adverse security assessment or a qualified security assessment?

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

I'd have to take that specific question on notice, but you would have heard what I had to say in answer to Senator Lambie's questions.

James Paterson (Victoria, Liberal Party, Shadow Minister for Cyber Security) Share this | Link to this | Hansard source

I can assist you, Minister, because the document that you tabled in response to an order for the production of documents which I moved—the dashboard document which the officials in the advisers box should be familiar with—stated that two of this cohort have current qualified security assessments and one of the cohort had a previous adverse security assessment and qualified security assessment but now has a prejudicial outcome. That seems contrary to the answer you gave Senator Lambie that none of them represented a national security risk. You know why those adverse and qualified security assessments are issued.

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

I can't add to my earlier answer to Senator Lambie, but I would make the point that the entire reason we are sitting right now, past the usual sitting hours, is to deal with the situation that has arisen as a result of the High Court's decision. We hope to pass this legislation quickly and then have the House of Representatives do the same thing.

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

I've been listening into the debate, and the concern is rightly about communities across the country. I recognise the need to deal with this swiftly after the decision, but clearly there's a lot of haste here, with amendments being circulated not long before we are to vote on them. I understand that this bill will go through, but, in light of the fact that Australia doesn't have a human rights act or the equivalent of a bill of rights and given just how rushed this, these are clearly not optimal conditions for legislating. But I understand the urgency, so I have circulated an amendment to insert a six-month sunset clause on this so that provisions can be put in place but it will require the parliament to come back and have a more thought-out, detailed plan on how to deal with this situation going forward once we have the full decision from the court. I understand that the major parties will get this through, and I support there being provisions to look after people in our community, but I really do think that this should be looked at again next year.

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

Thanks, Senator Pocock. I haven't personally seen the amendment that you've circulated, but I know that has occurred, and I appreciate the sentiments that you were just expressing. I think I can flag now that the government won't be supporting that amendment, because we do believe that it is necessary to move on this legislation. You may not have heard me say earlier that we fully expect there will need to be further legislative steps taken on this matter once we have received the High Court's reasons, and I give you a commitment to work with you—and I'm sure the minister would as well—on concerns that you may have once we see those reasons. But we don't know exactly when the High Court will hand down its decisions. I'd like to think it would be within six months, but it may not be. So we don't support putting in place a sunset clause. But, again, we've said that, once we receive those reasons, we'll need to give this matter some more thought. It's quite possible there'll need to be some further legislative steps taken, and we'd be happy to work with you at that point in time.

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

Thank you, Minister. I accept that, but it doesn't make a lot of sense to me to be saying, 'We'll come back and legislate, but we want this just to sit there potentially going forward.' Again, I accept the urgency of this, but when you're sitting in your office and you get amendments an hour before we're going to vote on what is a very important bill—and we don't have the underlying protections of a human rights act here in Australia. It's a fact. We should have one, but it hasn't happened. So what is the guarantee that some of these provisions won't just linger in law?

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

It's obviously a decision for any parliament, including future parliaments, as to whether they decide to amend legislation that is passed, but I've already indicated why we can't agree to your amendment, Senator Pocock. I know that it's well intentioned, and I repeat my earlier statement that we will be considering the matter further once we receive the High Court's decisions. We'd be happy to work with you on any concerns that you have.

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

Minister, I will just ask a follow-up question to my previous question and your response around judicial review. Thanks for your response. Could I firstly just ask you to be clear about the second part of your answer? I understand the first part of your answer, which is that there is judicial review available for the minister's initial decision to impose conditions but that that does not include a merits review. So I understand that. But, on the second part of your response, exactly what decision is it that you are saying is appellable, including a merits review? What is the second decision that you referred to your previous answer and that you informed us actually is appellable with a merits component or a merits option available to the applicant? As part of that, could you just step us through which part of this amendment bill or the original act provides for those appeal opportunities?

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

I just refer you to page 19 of the explanatory memorandum for the original legislation. I won't go through it in great detail, but it begins at paragraph 96. That sets out in some detail the situation here. Essentially, new subsection 76E(3) requires the minister, as soon as practicable after making a decision, to give the noncitizen a written notice setting out the decision. Then the following paragraphs in the explanatory memorandum go into some detail about the process for review and the minister's role in those reviews. So I think that that does adequately answer your question.

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

I will be circulating an amendment to include a 12-month sunset clause. I would like the government's view on safeguards to ensure that this doesn't just sit there. We know that things change in politics. This has been so rushed. I accept the urgency of it, but to vote on something of this nature with such little time and then to not even accept putting in some safeguards, when we hear that we're going to legislate anyway next year—I'm just interested in the government's view on a 12-month sunset.

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

I believe Minister Watt has answered this question. The government won't be supporting Senator Pocock's amendment, for the reason that Minister Watt has already explained. I move:

That the committee report progress.

Dean Smith (WA, Liberal Party, Shadow Assistant Minister for Competition, Charities and Treasury) Share this | Link to this | Hansard source

The question is that the committee report progress.