Sunday, 17 February 2019

ABC TV Insiders



Subjects: border security; disability royal commission


BARRIE CASSIDY: Attorney-General, welcome.


BARRIE CASSIDY: That's Tony Burke's message to asylum seekers and refugees. This program goes live into Indonesia. What's your message to asylum seekers and people smugglers this morning?

ATTORNEY-GENERAL: My message is the same as the Prime Minister's. Do not make the attempt because we will do everything within our power to stop you. But the observation that Tony made is clearly the primary legal observation to make, the legislation is not prospective. But there's another observation that's no less important and no less real. At the first conceivable opportunity Labor had to soften what have been very, very tough rules coming to Australia, they took it. And there is some implausibility about the notion that they wouldn't take that opportunity again if in government for a future cohort. And both of those observations are as real as each other. People smugglers aren't bound by the terms of the trade practices act. Which of those observations do we think people smugglers are putting to the clients?

BARRIE CASSIDY: But you do agree that it's very important to let the people smugglers know that this law does not apply to new arrivals?

ATTORNEY-GENERAL: That's absolutely correct. But it's equally a valid observation for anyone in Australian politics to note this - Labor first of all tried to make a prospective. Voted 22 times in terms of making it prospective. If they got into government again, would this special deal be done again for the next cohort of people that happened happen to arrive? What we say is that there is a plausibility for people observing that that is a big possibility.

BARRIE CASSIDY: You also say, of course, that this new law has weakened the borders. By trying to persuade Australians that the law has weakened the borders, are you not at the same time persuading the people smugglers of that fact?

ATTORNEY-GENERAL: We shouldn't be constrained from making observations about what this bill actually does. For instance...

BARRIE CASSIDY: Does it bother you, though, that that might encourage the people smugglers?

ATTORNEY-GENERAL: The bill wasn't passed by us. It does bother us that it would potentially encourage the people smugglers. It does bother us that it radically narrows ministerial discretion. It does bother us that the situation now is that people charged or based on an intelligence briefing, we reasonably suspect of criminal misconduct, can't be refused entry to Australia. But that's the reality of what's gone on. And denying that reality isn't part of responsible government.

BARRIE CASSIDY: But you do at least concede that they should know that the law doesn't apply to new arrivals. The Prime Minister has put out a video, which we'll get to later on in the program. As you understand it, does he go to that point?

ATTORNEY-GENERAL: The Prime Minister's message is very clear - don't make the attempt. We will do anything and everything we can within the law to stop you coming.

BARRIE CASSIDY: That's always been the case. Surely the thing that they must now understand is that this law does not apply to them?

ATTORNEY-GENERAL: Well, the law doesn't apply prospectively. Yes we agree on that. But again, an equally rational and real observation that can be made is that Labor took the first opportunity that they could to soften what had been very tough laws. Some people say too tough. We say that the balance is right. But they took the first opportunity that they were presented, in Parliament, in alliance with the Greens and Independents, to soften very tough laws. They say that they would never, ever, ever do that again if another cohort arrived and they were in Government. And what we say is - that is implausible and that's something that the Australian people have to think about as they cast their votes at the next ballot.

BARRIE CASSIDY: By the way it wasn't Labor alone, it was the Parliament that passed this law. Do you think that that fact will weigh on people's minds?

ATTORNEY-GENERAL: It was Labor with the Greens and Independents.

BARRIE CASSIDY: The Parliament.

ATTORNEY-GENERAL: Opposed by us. Well of course that's a fair description. But the point is that the situation before was very, very tough around the circumstances in which illegal maritime arrivals would ever get to Australia and they were incredibly narrow in a medical process that we controlled the timing of and retained complete discretion over. And that has now totally changed. And trying to deny that change seems, to me, to be absurd. Now of course, we are very concerned about what might happen because of that change. We are very concerned about the narrowing of the minister's discretion over, particularly criminal conduct, but that is the reality of the law that was passed through whilst Labor and the Greens agreed to gag debate on the laws.

BARRIE CASSIDY: Do you still maintain that it could be as many as 1,000 people that could come to the mainland under the change in this law? The Human Rights Law Centre told The Age on Thursday that 70 people have been assessed. Only a handful are urgent, and the people who handle the transfers themselves, the committee that handles that, told The Age that even 300 is an unrealistic figure.

ATTORNEY-GENERAL: Well, the Greens, who voted for this law, expect hundreds in the first several weeks, and we’re preparing for…

BARRIE CASSIDY: But these people would be a better judge of this than the Greens?

ATTORNEY-GENERAL: Is that right? I think that the best judge of all of these circumstances is our intelligence agencies, the Department of Home Affairs, the people who are working at the coal face and the reality is that we are expecting an influx of hundreds. And if you think about this Barrie, if you did want to come to Australia having been an illegal maritime arrival and you could do so by convincing two doctors that you needed to come to Australia for assessment, you need not even be ill, don't you think that you would be trying to do that?

BARRIE CASSIDY: It goes deeper than that. The minister can then block the recommendation of the two doctors and it goes before a panel - a panel appointed by the Government?

ATTORNEY-GENERAL: Well, a panel, now that's made up of volunteer s because of the constitutional problems with the legislation. But we would fully expect, and time will tell Barrie, but we would fully expect that even if the minister objects on medical grounds, that the independent health advisory panel will agree with the process commenced by two doctors. The two doctors have nothing to do with Government - they are in a private relationship.

BARRIE CASSIDY: Why would the panel automatically agree with the two doctors? I don't see why they would simply rubber stamp it? They would have a look at it themselves?

ATTORNEY-GENERAL: Of course they will. But time will tell but our assumption is, and I think it is a fair assumption that doctors will tend to agree with other doctors .And of course, these are matters of some subjectivity.

BARRIE CASSIDY: And rapists and murderers will be amongst them?

ATTORNEY-GENERAL: Well, the reality is that it was previously the case that the minister had ultimate and incredibly broad discretion to prevent the entry into Australia of people who didn't meet a character test.

BARRIE CASSIDY: And they still can. The minister can override, if a criminal record is involved, the minister can override it?

ATTORNEY-GENERAL: A criminal record of a certain type. But it was previously the case that the minister could prevent the entry into Australia of someone that our intelligence agencies reasonably suspect of serious criminality, including homicides or sexual offences. If they'd been charged, we could prevent their entry. If they'd been arrested, if they were awaiting a trail, that we could prevent their entry. We can now no longer do that, and that is the factual….

BARRIE CASSIDY: If somebody has a criminal record, you can stop it.

ATTORNEY-GENERAL: Well, if they have been sentenced to an offence of more than 12 months and we can positively verify that, which is not always an easy thing when you're trying to track back criminal records in places like Iran and Iraq for over ten years. But do you accept this proposition that the discretion is significantly narrowed? That previously, someone charged with a homicide or a sexual offence could be declined entry but now they cannot?

BARRIE CASSIDY: If you're talking narrow, that's a narrow field of people. Somebody who might have been convicted of murder or rape, and is still awaiting sentence. How many people on Manus and Nauru fit that category?

ATTORNEY-GENERAL: It's not a hypothetical.

BARRIE CASSIDY: You know for a fact that there are people who have been convicted of murder or rape and they're awaiting sentence?

ATTORNEY-GENERAL: We don't have every single criminal record of every person there….

BARRIE CASSIDY: So you don't know that?

ATTORNEY-GENERAL: Barrie, what we do know is that there are people who have been charged and who are awaiting trial for serious sexual offences. We know that...

BARRIE CASSIDY: Charged, not convicted?

ATTORNEY-GENERAL: That's right, but we have lost...

BARRIE CASSIDY: You're the Attorney-General, you know the difference between guilt and innocence?

ATTORNEY-GENERAL: I think, actually, if you read the legislation, the trigger is sentencing. So it's actually the fact that someone can be convicted of these offences, pre-sentence, which is sometimes a very considerable gap and we still lose the discretion for their entry into Australia.

BARRIE CASSIDY: But you don't know that anybody fits that category?

ATTORNEY-GENERAL: People fit the category of having been charged with serious offences including sexual offences…

BARRIE CASSIDY: That's different to being convicted.

ATTORNEY-GENERAL: …and we are unable now to refuse their entry into Australia. Whereas before these laws we were able to do that and that is a matter of very serious concern and it's not a hypothetical. We are looking into the hundreds of people that we consider likely to apply and we already have significant red flags on these types of character issues over dozens of them.

BARRIE CASSIDY: Malcolm Turnbull told Donald Trump in that interview that was leaked to the American media, "We know exactly who they are," he said of these people. Because Donald Trump raised concerns about the character. But he tried to assure Donald Trump. He said, "We know who they are. The only reason we don't now let them into Australia is because they came in by boat." He didn't seem to have a problem with their character at all?

ATTORNEY-GENERAL: The first point to make about that is that it was to Malcolm Turnbull’s enduring credit that America is a resettlement option and that so far, 400 plus people have taken that option and there will be more to come. Of course it's the case that of the 1,000 people who are offshore in processing at present, there has been a great deal of due diligence done with that part of the cohort that had been earmarked for movement to America, and we do know certain things about that part of the cohort. But for the rest, which is hundreds and hundreds of people, the assessment that would be required to see their suitability on security and criminal grounds for entry into Australia wasn't conducted, is being conducted now, but wasn't conducted previously because it was never intended that any of those people would enter Australia.

BARRIE CASSIDY: But you've got an agreement with the Papua New Guinea and Nauru government that these checks would be held before they went off to offshore detention.

ATTORNEY-GENERAL: Offshore detention and the assessments are about the status for people applying for refugee status, which is a very, very different...

BARRIE CASSIDY: So you've done that assessment already?

ATTORNEY-GENERAL: It's a very different set of assessments than the assessments that you undertake pursuant to section 4 of the ASIO Act or under the 12 character assessment provisions of the Migration Act in section 501. They're very different assessments.

BARRIE CASSIDY: Why is Christmas Island being reopened? Is it to deal with those who will be deemed to be ill and in urgent need of medical treatment? Or is it to deal with an expected boat arrival?

ATTORNEY-GENERAL: Well, you need not be ill to be the beneficiary of one of these transfers. You need only to have been assessed as requiring further assessment. So that's, first of all, something to note. The second point is that if we are right and there are likely, as logic and common-sense would tell us, to be hundreds of applications…as a government, we closed 19 detention centres. Labor opened 17. Those are at capacity. The Labor laws actually require the people who might be the beneficiaries of a transfer to be in detention. Many of them because we've lost our discretion, will be unsuitable for community detention. So opening Christmas Island is a rational, indeed, one of the very few limited responses that we can take, to deal with the influx of hundreds of people in a system where we have shut down 19 detention centres.

BARRIE CASSIDY: Do you accept though that it's not a place to send people for urgent medical attention?

ATTORNEY-GENERAL: Again, on Nauru now, there are in excess of 60 medical professionals for the people on Nauru, which is a ratio of about 7-1 - better than anywhere else in Australia.

BARRIE CASSIDY: So why would you transfer them to Christmas Island where there's six hospital beds and no surgery?

ATTORNEY-GENERAL: Because we will ensure that there is appropriate medical attention on Christmas Island. But it’s not to say that there won't be reshuffling between Christmas Island and facilities that exist onshore. But the reality is, the facilities that we have at the moment are at capacity and can't cope with the influx of hundreds of people. I mean, are we suggesting that we should reopen facilities on-shore? That's hardly something that seems particularly desirable after six years of effort to ensure that they were closed?

BARRIE CASSIDY: Can I ask you about the Paladin, this is the company that takes care of security issues on Manus Island. They've got a contract worth $423 million. According to the Financial Review, it's a little-known Singapore company with a registered address on Kangaroo Island. It's a beach shack at the end of a dirt road. Can you shed any light on that?

ATTORNEY-GENERAL: Well, $423 million does sound like a lot of money, of course, but that has to be kept in this context that when Labor lost control over the borders, the cost to the taxpayer was $16 billion. Reopening Christmas Island will cost in excess of $1 billion. It is a very expensive business when you have to cope with…

BARRIE CASSIDY: It is not so much the money that got my attention but the fact that they're registered at a beach shack on the a dirt road?

ATTORNEY-GENERAL: This was the subject of a full independent Commonwealth procurement process and I'm sure that the claims are going to be very thoroughly investigated. I understand they particularly relate to an individual, who, themselves, is not contracted to deliver Commonwealth services in Papua New Guinea.

BARRIE CASSIDY: They earned $17 million a month. The Minister for Home Affairs, Peter Dutton, had no sight over it. It was a closed tender process, or at least restricted. How is it that public servants can decide this kind of thing without ministerial oversight?

ATTORNEY-GENERAL: Standard procurement processes are often at arms-length from the minister.

BARRIE CASSIDY: Is this typical of how things work?

ATTORNEY-GENERAL: All procurement processes are different. But what it's typical of is the fact that it costs a large amount of money to deal with the fact that we are leaving legacy items, 50,000 people arrived unlawfully, we removed them from detention, 8,000 children we removed from detention. That costs, unfortunately, a great deal of money.

BARRIE CASSIDY: Should it cost this much? It's more than double the rate of a 5-star hotel suite overlooking Sydney Harbour?

ATTORNEY-GENERAL: But this is the whole point Barrie. When we have people in offshore processing facilities, there is an expectation that they have the absolute highest levels of service, accommodation, medical treatment, security.

BARRIE CASSIDY: 5-star hotel suites?

ATTORNEY-GENERAL: Well, the reality is that doing these types of things offshore in Papua New Guinea and in Nauru is a very costly exercise. But in exacting that costly exercise, we have managed to stop the inhumane outcome of 1,200 people dying at sea; 50,000 people arriving illegally and at its peak, 20,000 people being held in immigration detention in Australia. We, in our policy settings, prevented that terrible and inhumane outcome.

BARRIE CASSIDY: Do you know if there is any connection between this company and Papua New Guinea MPs or officials?

ATTORNEY-GENERAL: Well of course, I don't have any line of sight into those sorts of claims and they have to be investigated thoroughly.

BARRIE CASSIDY: Finally, if you were to vote for a Royal Commission into abuse in the disability sector tomorrow or through the week, would you support a Royal Commission and then not act upon it?

ATTORNEY-GENERAL: Well, I think that the advice that I would provide is that a Royal Commission looking backwards into issues around disability care is essentially a Royal Commission that would look into state facilities. This area is in a period of enormous change. Our Government spent has in excess of $200 million establishing a Commonwealth safeguards assurance and protective agency for disability care. But that, I think would, at the very least, require consultation and agreement with the states, and likely Letters Patent from the states. So the idea that you could effect that Royal Commission simply through a Greens motion in Parliament I think misunderstands the complexity.

BARRIE CASSIDY: So you could vote for it but not set it up?

ATTORNEY-GENERAL: The idea that you would need to have assurances from the states, and I think, likely Letters Patent from the states, before you get to that point. I think it's a matter that needs to be discussed very closely with the states.

BARRIE CASSIDY: Thank you for coming in.