Wednesday, 13 February 2019

Mornings on 6PR with Gareth parker



Subjects: Border security


SCOTT MORRISON: My job now, is to do everything within my power, and in the power of the Government, to ensure that what the Parliament has done to weaken our borders, does not result in boats coming to Australia. It is still the case that our Government is running border protection in this country, and that of itself, is a great deterrent, because they know our resolve. So if they don't come, it'll be because of the work and the decisions we are now taking, and the actions we are putting in place. If they do come, you can thank the Labor Party and Bill Shorten, because he is the one who has led this process.


GARETH PARKER: The Prime Minister of course, Scott Morrison, repeating that that Kerryn Phelps' Bill is now law, it has passed the Senate. Fascinating what the PM says there, if the boats don't come, it's because of his Government's good work. If they do come, well you blame Bill Shorten.

What does the Opposition leader say?


BILL SHORTEN: The issue is new people who might come by boat, they could be conned by the people smugglers, and say that if you come to Nauru, this medical evacuation legislation applies to you, well it doesn't. So if you think that by buying a ticket on an unsafe boat, paying a people smuggler or a criminal syndicate, somehow you can get a better deal to get to Australia, you're wrong.

[End of tape]

GARETH PARKER: The Opposition leader, Bill Shorten. So there's floods in Queensland, there's Aboriginal kids in the Kimberley, there is the National Disability Insurance Scheme that doesn't work, there's an economy that's not in rude health, there is a banking system that urgently needs to be overhauled. These are all things politicians could be doing, they're not. They're consumed with this issue. Will the boats come? I don't know. If they do, who will you blame?

Give me a call and let me know, I want to take your temperature on this issue. The Bill has now passed, it all swung on the vote of Derryn Hinch, Senator from Victoria. Here is Hinch explaining his reasoning.


DERRYN HINCH: What really swayed me was the amendment, which I was surprised that the Greens agreed to, and that was the one that it'll apply only to people who are currently on Nauru or are on Manus. That is sort of a reverse grandfather, it just stops there. So it's not an encouragement, I believe, to boat people, or to the people smugglers who are despicable and should be despised, because it'll only apply to people who are there. And people who are transferred off Manus and brought back to Australia - according to the Home Affairs Department, they assured me today - they will remain in detention, in some manner or form. So they will not be coming here and wandering around the streets of Australia, they will be coming here for medical attention.

I will acknowledge that the Government has spent a lot more money on medical facilities at, on Nauru, and also on Manus, but there are conditions which cannot be taken care of there. The doctors who have worked there say there are some medical conditions and medical situations where they just cannot possibly be done there and they should be brought here. So it has been a very tortured 24 hours, there's been a lot of pressure, for a lot of people on all sides of the chamber, but that's part of this job. I think it's the right decision; it's a humanitarian decision because in the Justice Party world, we've always try to look after young people, old people, sick people. Well all those three categories still apply in these amendments, and therefore I will be supporting them.

[End tape]

GARETH PARKER: And he did. And it's now passed the Senate and it will in due course become the law. What does the law actually do? I want to ask the Attorney General, Christian Porter, good morning.

ATTORNEY-GENERAL: Morning, Gareth. It's a very significant change.

GARETH PARKER: What does the law actually do?

ATTORNEY-GENERAL: Well, the simplest and most accurate description I can give for your listeners is that previously the Minister had an ultimate authority, discretion, on these issues, as to who would be transferred from a facility like Nauru. This effectively shifts that discretion into the hands of two consulting doctors, so two GP's anywhere in Australia can start the process. If they make a decision that in their view - which is ultimately a subjective view - that someone on Nauru should come to Australia for further assessment, that starts a process and that process then goes to another panel of doctors. If they agree, the Minister's discretion is removed unless there is a security ground, which is narrowly defined, but does include a substantial criminal record. Fundamentally, it removes the discretion…

GARETH PARKER: Sorry but the security part of this, is about, that it still reside with the Minister, correct?

ATTORNEY-GENERAL: It does, but the definition of security has its clear limitations. So some discretion on security grounds remains with the Minister, we would say not nearly enough. But a very substantive, and the overwhelming discretion that the Minister previously had is now transferred into two doctors, to be oversighted by a panel of doctors. And ultimately, that will mean that a whole range of people who are presently in offshore facilities, will come to Australia.

GARETH PARKER: This bill, this law - which class of asylum seekers does it apply to?

ATTORNEY-GENERAL: Well people in offshore facilities, so it doesn't look into the status of their determination.

GARETH PARKER: So people presently in offshore facilities?

ATTORNEY-GENERAL: That's correct.

GARETH PARKER: Just the thousand or so on Nauru and Manus?

ATTORNEY-GENERAL: That is right, and the argument's been put that that will mean that this won't be of any interest to people smugglers. Well that is mad. I mean the reality is this is a very significant change in the border protection policy that this Government has successfully run for six years, that stopped the boats, that's seen 8,000 children move out of detention, that has in effect solved the problem. And the way in which this will be put to people who would enliven this trade is that there has been a significant shift, and there has been a significant shift. And of course the people who are already in these facilities are people with respect to whom this Government has said they would not come to Australia, unless the minister exercised his discretion, based on medical advice, that's the system that we had. And now that changes. And that change unfortunately will now be advertised to people who could reignite this trade.

GARETH PARKER: Hasn't the prime advertiser to people smugglers and the people who might use their services in the past 24 hours been the Prime Minister Scott Morrison?

ATTORNEY-GENERAL: Well, I think that is a completely false appraisal of what has gone on here. And the reality is, Gareth, that we fixed a problem that we inherited. We had thousands of people in detention; we had 50,000 people arrive by 800 boats; 1,200 people drowned at sea and through a combination of temporary projection visas, boat turn backs, and offshore processing, we stopped that. And we had administered as much assistance medically as we could reasonably do, on the offshore processing facilities. I mean the reality is that, per head of (population), there are more medical personnel looking after people on Nauru than what exists for any other part of the Australian community. Seriously, more medical attention than any other Australian would have access to in the normal run of events. So we have tried to be as compassionate, as fair, as reasonable, and offer the best possible services, but those three things; temporary protection visas, offshore processing, and boat turn backs, stopped this trade and fixed this problem. And Labor have already said that they're not committed to Temporary Protection Visas, and now they have significantly weakened the third of those pillars, which is offshore processing. We didn't do that. I mean our policy settings had fixed and solved and stopped the deaths at sea, and now Labor is unwinding those policy settings piece by piece. So this is a problem that they are reigniting.

GARETH PARKER: The issue of boats and whether they're coming to Australia, and whether they are turned back, for some years, since the Coalition has come into office, it has been the deliberate policy to be very economical with the information that is released publicly about boat turn backs, about boat arrivals, and the explanation for that economy has always been that it is not in the best interests of trying to smash the people smugglers business model - which I think most people support by the way - to have all that information out there. In the lead up to an election, will there be any changes to that policy, or if the boats do come, if boats are turned back, can we expect your government to scream that from the rooftops, so as to pin that issue on Bill Shorten and the Labor Party?

ATTORNEY-GENERAL: Well, our resolve as a government to prevent people taking a perilous journey that has resulted in deaths and which is unlawful, I don't think can be in doubt, and we're not planning to change policy settings. I see what you're saying about further highlighting the strength of our policy and we'll always do that but I'm not making any particular comment there on whether or not we would be more fulsome in information around boat turn backs.


ATTORNEY-GENERAL: I think that would be highly unlikely because those are operational matters which more public knowledge of them does not actually benefit the public. But we, of course, will consistently, as the Prime Minister has done today, demonstrate that while we are the Government, we have an ironclad resolve to stop this trade from reigniting, causing deaths of men, women and children at sea.

But the sad reality over the last two days has been that in the House of Representatives, in an unconstitutional manner I might also add, an alliance between Independents, the Greens and Labor has weakened one of the three fundamental pillars of border protection which has made sure that the people smuggling trade has been stopped. And that is why the Prime Minister has said if the trade reignites, if the boats start again, if lives again are lost at sea, then the change that has been made which causes that outcome is a change that has been driven by Bill Shorten; and any consequence for the actions of Bill Shorten in Parliament this week are consequences for him to bear in the lead up to an election.

GARETH PARKER: Can I take you to the constitutional question which you've just raised there? Because this is, I find, remarkable. You, in the first instance as the Attorney-General, provided advice to the Speaker that this bill couldn't be originated in the Senate because it was about spending money and therefore was unconstitutional. You asked that that advice not be tabled. The Speaker, in his wisdom, decided to table it. It's now out there for anyone to read. Is it your position that this isn't constitutional? If that's the case, will you mount a constitutional challenge?

ATTORNEY-GENERAL: Well, the difficulty is that the decision as to whether or not this was a money bill and unconstitutional was a decision for Parliament. That's the way in which Section 53 of the Constitution works. The legal advice that we provided says that it was unconstitutional for these amendments to have ever arrived at the House of Representatives and no one is arguing that point. What we said was that the amendments in the Senate required the Minister appoint doctors to a panel and they had to be paid, and that made this a money bill and that breached the Constitution. And you know what Labor did? Is they changed the legislation to make the services on that panel of doctors voluntary. So they agreed - it was a money bill. It shouldn't have been there. It was unconstitutional. But on the-

GARETH PARKER: So can there be a challenge or will there be a challenge?

ATTORNEY-GENERAL: Well, the difficulty is that that is not a matter that can be challenged in the High Court.

GARETH PARKER: Right. So it's up to Parliament to decide.

ATTORNEY-GENERAL: Because Labor moved a motion in Parliament to effectively turn a blind eye to the fact that this amendment should never have arrived in the House of Representatives.

GARETH PARKER: Okay. So it's…

ATTORNEY-GENERAL: …but it was, in effect, unconstitutional. So, what they did was unconstitutional and they turned a blind eye to that unconstitutionality; overturned 109 years of practice in the House of Representatives; and unfortunately, that is not a matter that can be sent to the High Court because they, again, bear the responsibility for making that unconstitutional.

GARETH PARKER: Okay. So here's where I get to on this issue. You're the Government; you've lost a vote on the floor of the House of Representatives for the first time in 80 years; you've just told us that the vote that happened in your Government, with your Government punitively in control of the Parliament is unconstitutional. Haven't you lost control of the Parliament? Isn't it time to call on an election?

ATTORNEY-GENERAL: Well, I mean, the constitutional nuance of that, Gareth, is that I say it's unconstitutional because it was a money bill. The Solicitor-General says that. That's our theory. I think that theory's right but by virtue of Bill Shorten's vote, he failed to determine that point in Parliament. So there will never be a definitive answer from Parliament to that because the motion that he put was that the House of Representatives refrain from making that decision. So in effect, what he required the Parliament to do was turn a blind eye to the very strong arguments that this was unconstitutional. So, it remains unconstitutional in theory, and my view is that that theory is very sound but in effect, he required the Parliament to turn a blind eye to that unconstitutionality. Look, he has crashed-

GARETH PARKER: But your Government hasn't lost control of the Parliament?

ATTORNEY-GENERAL: No. I mean, look, this has happened before and no doubt, in the future, it will happen again.

GARETH PARKER: Well, the last time the Government lost a vote on the floor of the House was 80 years ago and we went off to the polls.

ATTORNEY-GENERAL: Well, people have said that but in fact, it was actually in 2013 when the Opposition, when we were Opposition and passed amendments on a Superannuation Legislation, Service Providers and Other Governments Measures Bill. So, this happened to the Gillard Government, and it's just curious that the media has run rampant with the idea it hasn't happened except for 80 years ago; it happened in 2013. I mean, this is not…


ATTORNEY-GENERAL: …this is not fatal to the Government. Of course, it's not. What it does do though is weaken a successful system of border protection and greatly increases the risk that you provide incentive to people smugglers to put unfortunate people on boats and risk their lives to get here because they have knowledge that there's been a fundamental shift in the settings that have stopped that for happening for six years.

GARETH PARKER: Last question - hasn't the Parliament got better things to do?

ATTORNEY-GENERAL: Well, we would argue that it does. I mean, this is not our amendment, Gareth. We didn't bring on. Why are we fixing something that's not broken? I mean, this system works, and as I've noted to you, the people that are on Nauru receive the benefit of 63 or 60-odd medical experts who provide services to them. I mean, it is not as if the Minister, in the exercise of his discretion as was previously the case, isn't informed by and advised by very serious medical advice that there is some very excellent medical services available on Nauru. And in fact, we have had medical transfers, many of them, to Australia with the ultimate discretion of the Minister.

But the bottom-line for your listeners is that now, even if there is a reasonable belief that someone has committed a serious offence or indeed, that someone has been charged because of an offence that they have committed on Nauru, if doctors say that that person should come to Australia for further assessment, the Minister is powerless to prevent that transfer. That's quite wrong. It sends a terrible message to people smugglers and it wrecks a policy that has worked so very well for six years.

GARETH PARKER: Thank you for your time this morning.


GARETH PARKER: Christian Porter, the Attorney General.