Thursday, 21 February 2019

AM on ABC Radio Canberra with Sabra Lane



Subjects: Medevac, Paladin

SABRA LANE: The federal government says it has legal advice that a loophole exists in the recently passed Medevac law that would bring asylum seekers and refugees to Australia for medical treatment. The government says the flaw means it won't have the power to send people back to Manus Island or Nauru once they've regained their health. Joining us now with more is the federal Attorney-General Christian Porter. Good morning and welcome to the program.

ATTORNEY-GENERAL: Thanks Sabra. I accidentally called Fran Kelly Sabra this morning. So I'm going to try not to compound that error.

SABRA LANE: Alright. Will you release the advice in form?

ATTORNEY-GENERAL: We don't waive privilege over government advice. We'll obviously provide a summary of the mechanics of the problem that we believe that we will encounter. And no doubt, that will be poured over by migration lawyers and others but it's the sort of advice you don't want to receive; I wish it weren't the case and we're obviously looking for other heads of power or auxiliary powers or little used powers to see if there's another way in which you could affect the return, but the usual powers that exist in the Migration Act that usually apply to the general medical transfers that we've been conducting rather quietly and efficiently we would say - it appears because of a drafting error do not connect and apply to this Labor amendment to the Migration Act so as you said, the difficulty is we don't see there is a lawful authority to send people back.

SABRA LANE: Alright. What about the 800 people that are already here for treatment? Does it apply to them?

ATTORNEY-GENERAL: No. There is a lawful authority to send those 800 people back; almost all of those people are challenging that lawful authority in the Federal court, so we haven't had great success in returning that group. But there is a lawful authority, a basis at law for returning them, which becomes the subject to Federal Court hearings but the problem that we've encountered here is that we can't even see what the lawful basis for the return would be.

SABRA LANE: Alright. Well, you've talked about possibly looking at other auxiliary powers that you have; if there other alternatives then, why are you telegraphing this issue so publicly when there could be a solution to it?

ATTORNEY-GENERAL: Well, the people I think have the right to know how bad this law is.

SABRA LANE: But if there is a genuine loophole with it, you could work with Labor to fix it. The Government won't extend parliamentary sitting days; today is the last day of Parliament for a while. You've run out of time; it's a problem of your own making.

ATTORNEY-GENERAL: Well, I think that that cannot be a correct characterisation of the situation. First of all, Labor this morning has come out and said that they don't believe that there is a problem. I wish that were the case but there is a problem; they don't believe there is so it's not going to be a very fruitful line of negotiation with Labor to fix a problem that they don't believe exists. The idea that somehow we're responsible for an issue of poor drafting in a bill that Labor, the Greens and the independents rammed through by gagging debate in the House of Representatives; so it couldn't even be debated by the Parliament, seems to me to be a rather unfair characterisation of it. We're doing our best to deal with a terrible law but it's not a law that we made.

SABRA LANE: Why didn't Border Force Chief, Mike Pezzullo, or ASIO boss Duncan Lewis raise these issues earlier this week before Parliamentary hearings?

ATTORNEY-GENERAL: Well, this is a very particular legal issue about drafting in a 1000-page Act and the way in which sections of that Act intersect and relate to each other so it is a complicated legal issue and it's an issue that's arisen because of the failure in drafting so…

SABRA LANE: So failure in drafting recently or in the bill that existed before Parliament in December?

ATTORNEY-GENERAL: The Labor bill that was put before Parliament is so poorly drafted that it doesn't provide for a lawful mechanism to return people who would be medically transferred on the instruction of two doctors.

SABRA LANE: Given the recent use of classified material and the selective interpretation of it for political purposes, which has clearly annoyed Duncan Lewis, the ASIO boss this week who said that the agency's advice about this issue had been misrepresented and damaging to his organisation. Why should the public trust the Government on this?

ATTORNEY-GENERAL: Well, we're simply pointing out what is a legal and drafting error with the legislation. Now, that can be tested by lawyers; it can be tested by lawyers in court. We wish there wasn't this problem but we think there's some obviousness to the problem now that it has been revealed. And every day we're finding problems with this legislation.

SABRA LANE: I'm sorry, I'm going to pick you up on another point too. Given what Border Force chief, Mike Pezzullo, has said about perceptions on this particular issue that's really important to show the resolve of the Australian Government, why is the Government telegraphing this effectively saying that the borders are weaker?

ATTORNEY-GENERAL: Are you seriously suggesting the Government shouldn't be able to inform the Australian people about the deficiencies in a law that we said was deficient?

SABRA LANE: But you've already said that there might also be other auxiliary powers.

ATTORNEY-GENERAL: Well, there may be. I hope that we can find something; I'm not highly confident that we will. But I mean, this is a law that was passed; we warned that it was a terrible law; we pointed out a range of known terrible consequences of passing the law; we warned that there would be unintended consequences and we cannot seriously be suggesting now that in a democracy, we do not have the legitimate ability to inform the Australian people about the deficiencies in a law that we said was deficient. I mean, that's how good laws get passed and bad laws get rejected; unfortunately, this is a bad law that passed with the support of Labor, the Greens and the independents.

SABRA LANE: Turning now to the Paladin Group, you heard earlier in the program that Paladin has allegedly been laying off workers only to hire them back under a different company on lower rates through a company called Black Swan; these workers only earn a few dollars an hour. How is that acceptable?

ATTORNEY-GENERAL: Well, I listened obviously intently to the piece you played before I came on air and there was a suggestion that people had been reemployed on a rate that was five cents lower than their previous rate which is not an insignificant amount of money obviously in that market. But without knowing whether or not the second contracted employment has other terms and conditions that make up for the five cent drop in pay - I mean I just can't be expected to make a determinative view or observation on someone being employed by one company and having that employment transition to another company in another country without further detail about the context of it.

SABRA LANE: Alright. Well, this group is being paid $400 million by the Government to deliver a service on Manus Island; the PNG Prime Minister, Peter O'Neill, says there should be an investigation into the awarding of this contract - to quote his words: an inexperienced and unknown group. Will the Government re-examine this deal?

ATTORNEY-GENERAL: Well, I understand that it's been put to the Office of the Auditor-General that he should examine it; I understand Labor has asked for that …

SABRA LANE: Do you welcome that?

ATTORNEY-GENERAL: … and no doubt, he will make his own decision if he decides to audit the contracts under the terms of his act, well that's completely acceptable and appropriate but - and it's also of course the case that we want to make sure that contracts with the Australian Government for the provision of services, whether their onshore on Australia or offshore in Papua New Guinea, are good contracts where we get value for money. But the reality is that this a very, very difficult area that will cost the Australian taxpayer- last time, Labor lost control of the borders was $16 billion…

SABRA LANE: Sorry, and just on that point that you've made about value for money, how is it that the government found itself in this position where it had no other option but to apparently hire this one company for this job?

ATTORNEY-GENERAL: Well, I mean offshore processing obviously is one of the three pillars that's underpinned our ability to control our borders and get them back under control. But offshore processing is a very, very difficult task. Of course it's not conducted in Australia necessarily, it's conducted under the sovereign laws of foreign countries; there are sometimes limitations on the depth of the market in places like Papua New Guinea and Nauru. So to make offshore processing work, which we have done, has been a very, very difficult and expensive business but that is the business that has saved the Australian taxpayer $16 billion which was the amount wasted the last time Labor were in charge of this policy area.

SABRA LANE: Attorney-General Christian Porter thank you for joining the program this morning.