Thursday, 21 February 2019

First edition on SKY News Live with Kieran Gilbert and Laura Jayes



Subjects: Medevac, AWU raids

LAURA JAYES: Joining us now is the Attorney-General, Christian Porter, in the studio. What does the Government- why doesn't the Government have the power to return sick people under this Medevac bill to Manus and Nauru, and what is the Solicitor-General's advice actually say?

ATTORNEY-GENERAL: So we obviously have been conducting medical transfers in a very orderly, low-key, and efficient way for some time. And we've done that pursuant to a provision of the Act, and that provision contains in it reference to other provisions that underpin our ability to return people to Manus and Nauru. When Labor pushed this through, they hadn't considered how people would be returned, and their drafting makes no provision for the return of people to Manus and Nauru. So …

KIERAN GILBERT: Under the power to bring transitory persons to Australia, I've got it here, section - well, the first point under that subheading is and officer may, for a temporary purpose, bring a transitory person to Australia from a country or place outside Australia. It's for a temporary purpose.


KIERAN GILBERT: How is there any doubt about that?

ATTORNEY-GENERAL: Well the temporary purpose ends pursuant to a lawful power to remove, which is contained elsewhere in the Act. So you're reading from 198C …

LAURA JAYES: What does that mean?

ATTORNEY-GENERAL: Well, it means this: that 198B of the Migration Act, which is what we've used traditionally for medical transfers, makes reference to a range of other powers that allow for the return. That is also meant to be temporary transfer, but what makes it temporary is other provisions in the Act that underpin our power to return. The new law that Labor brought in did not provide the legislative link to those other powers in the Act that allow for us to return someone. So the legal advice is, and it is quite clear this is a drafting error, a very considerable loophole, that there is no power to return.

KIERAN GILBERT: Will you release the advice? So we can have a look at it?

ATTORNEY-GENERAL: We will provide a very briefed and succinct summary of the advice so that people can test this proposition. This is the sort of advice that you'd get and you hope it's not correct. But it appears to us that it is absolutely correct, it will no doubt be tested over the course of today.

LAURA JAYES: So you're obviously quite concerned about it. Last time I checked, you are still in government, so why don't you extend the Parliament sitting week and maybe move an amendment or make a legislation to close the loophole?

ATTORNEY-GENERAL: Well the first thing that we'll do is search for other powers that might underpin our lawful authority to return people. We're doing that right now. This …

LAURA JAYES: Who are you concerned would actually challenge this and pursue this loophole?

ATTORNEY-GENERAL: I think the person who would challenge it is the first person we tried to return. I mean, let's be serious about this. If hundreds of people …

KIERAN GILBERT: So you're suggesting this definitive advice, do you believe, from the Solicitor-General?

ATTORNEY-GENERAL: We'll I think it's very …

KIERAN GILBERT: Because he's been wrong before.

ATTORNEY-GENERAL: It's the Australian Government Solicitor. Look, no legal advice is beyond stress-testing and questioning. And as I say, it's not advice that we wanted to receive. It's not advice that makes us at all pleased because what it means is that people are brought from Manus and Nauru, to Christmas Island pursuant to a Labor law, placed in detention, that have been brought from a state where they're not in detention in Manus and Nauru, being placed in detention without the Government having a lawful authority to return them to Manus and Nauru.

KIERAN GILBERT: How many have you sent back in the last year? Because my understanding is the Government sent back one person.

ATTORNEY-GENERAL: The people who have come under section 198B - the existing medical transfer - almost all of them are still here, I understand, because of the fact that our lawful authority to return them is being challenged by these individuals …

KIERAN GILBERT: That's happening under your Government, anyway.

ATTORNEY-GENERAL: Well, there is a very, very significant distinction between the Federal Court challenge to our existing lawful authority to return someone and the law that Labor has passed where there is no lawful authority to return them at all. It wouldn't even get to the …

KIERAN GILBERT: But it's the same result. You've returned one person last year.

ATTORNEY-GENERAL: Well, if you can accept between leading the Government with no power to return, and leading the Government …

KIERAN GILBERT: It's not that case of acceptance. If you look at the outcome, the outcome is you've returned one person. And many others are still here under your laws.

ATTORNEY-GENERAL: Well, these are unresolved Federal Court hearings which are about our power to return, but the power clearly exists. These are Federal Court actions about whether or not we're exercising that power in all the circumstances in a way which is lawful. And we say that we are, and arguments would be resolved, but in this circumstance, with this Labor law, you wouldn't even get to have that argument. Because the power doesn't exist.

LAURA JAYES: But the point is, Kieran is making that you have limited power to return these people anyway under this advice from the Solicitor-General, the inference is that it is somehow a massive dismantling of the border protection system. If you're not returning these people anyway, what is the difference?

ATTORNEY-GENERAL: Well, we…the people who had been medically transferred under the existing provisions, we are doing everything to return them. And we may be successful in some of those Federal Court matters to return them. But what I'm saying to you both now, and what the Australian people need to understand is Labor had left us with a situation where hundreds of people will be transferred from Manus and Nauru - where they're not in detention - to Christmas Island where they must be in detention, and the Government will have no lawful authority to remove them. So consider this, a law designed to affect a more humane result - as we're told by Kerryn Phelps and Labor - brings people who are not in detention to what looks now like permanent detention …

KIERAN GILBERT: You should really release it though, shouldn't you? So we can all look at it.

ATTORNEY-GENERAL: Well, we'll give a very good summary of it, but we do not waive privilege over our advice, and the reason why is because if we end up in one of these court cases that we've just discussed, we don't want the other side having all of our advice, which is not an unusual set of circumstances for government. But this no doubt will be tested, and if Labor say that there is a lawful power to return, we'd love to hear what it is.

LAURA JAYES: Already, refugee advocates and lawyers are saying that they could challenge you bringing people from Nauru and Manus Island to Christmas Island anyway, because there is an ability to challenge because the medical facilities - they could argue - are not up to scratch, actually not better than Nauru and Manus Island. What do you say to that?

ATTORNEY-GENERAL: Well, I mean, I fully anticipate that there will be challenges of that nature. And we will defend them vigorously as we try and exercise our existing lawful power to return when people challenge that in the Federal Court. But again, this is a very unusual and distinct, and quite shocking set of circumstances where people are being brought - pursuant to a law - and Labor hasn't left us a lawful basis to return them.

KIERAN GILBERT: As the first law officer, I'm wondering- can you explain for our viewers how the Deputy Commissioner of the Federal Police has said that Michaelia Cash and Michael Keenan did not provide witness statements? That Michaelia Cash says she did provide a statement through, you know, a copy of Hansard and that's acceptable, given the Federal Police thought they could have a case for prosecution, but Ministers of the Crown are providing witness statements. Is that acceptable?

ATTORNEY-GENERAL: Well, I've seen the letters that were provided to Michael Keenan after he provided written material, and whether you call it a statement or a witness statement, or a letter, the correspondence back from the AFP thanked him for his statement. That was the word they used, they said that they …

LAURA JAYES: Well, what do you say? Is it a witness statement or not?

ATTORNEY-GENERAL: They said that they would contact him if they require further information and they didn't recontact him.

LAURA JAYES: Is it a witness statement or not, though?

ATTORNEY-GENERAL: Well, I mean, there are variety of ways in which information can be provided on request, whether or not this is in a form that the AFP called a statement, or a witness statement, or whether or not in the letter to Michael Keenan they were using the shorthand term statement to describe a witness statement…the point is, they requested information, he provided. They accept that they would get …

KIERAN GILBERT: Michaelia Cash, though? Michaelia Cash provides copy of Hansard? That's an insult, isn't it?

ATTORNEY-GENERAL: Well, again, the AFP accepted what was provided and said that they would get back to them if they wanted more, and they didn't get back to them.

LAURA JAYES: Attorney-General Christian Porter, thank you.

KIERAN GILBERT: Appreciate it, thank you.

ATTORNEY-GENERAL: Thank you very much. Cheers.