Subjects: Medivac Bill
STACEY LEE: And we stay in Canberra now. Let's go live to chief political reporter Kieran Gilbert, who's speaking to the Attorney-General.
KIERAN GILBERT: Stacey, thanks very much. Joining me is the Attorney-General Christian Porter.
Attorney, is the Government guilty of hyperbole when it comes to the warnings around this border protection bill?
ATTORNEY-GENERAL: No. I think what we need to remember is that these bills were rammed through Parliament with a gag that was supported by the Greens and Labor, so there was not adequate time to ventilate a whole range of issues that arise with what is quite a complicated set of changes. But for instance, one of the issues, and I raised it yesterday, was that at the very last minute, Labor put an amendment which would give some discretion to the Minister to try and solve a problem, to stop people who are criminals, in effect, coming to Australia on the recommendation of two doctors. Unfortunately, what they tried to achieve doesn't work and the reason why is they used the definition in the Act of substantial criminal record, which relies on there actually having been a sentencing for someone.
Happy to read it for you and your viewers. So a substantial criminal record under the Labor amendments is someone who has been sentenced to death, sentenced to imprisonment for life, sentenced to a term of imprisonment for 12 months or more. Now, a sentencing is the very last part of a very long tunnel in the criminal justice system. So the point is this - and it's an inarguably correct point - if someone has been charged with a very serious offence or is awaiting trial for a very serious offence or even that they've been convicted of the offence and are awaiting a sentencing, or we have a credible intelligence from our intelligence agencies that they are reasonably suspected of committing a serious criminal offence, there is no discretion for the Minister to refuse the transfer of that person once the process has been initiated and underway
KIERAN GILBERT: So is it more accurate then for the Government to say 'alleged' criminals? Because the way that the Prime Minster and others have been saying rapists, paedophiles and so on…
ATTORNEY-GENERAL: Well, again …
KIERAN GILBERT: …you're basically circumventing any legal process…
ATTORNEY-GENERAL: Not at all.
KIERAN GILBERT: …even if it is one out of PNG or Nauru or Saudi Arabia, wherever it is.
ATTORNEY-GENERAL: Well, you make a very interesting point about circumventing a criminal justice process and I'll come to that in a moment. But the point is, under what Labor …
KIERAN GILBERT: So why don't you say alleged though? Well, at least you could say alleged if they're not guilty.
ATTORNEY-GENERAL: Well, I'm answering your question. In instances where someone has been convicted of a serious offence such as murder or rape but has not yet been sentenced - and there is very often a separation in time between conviction and sentencing - that person isn't alleged to have committed the offence; they have committed the offence. But the Labor legislation that was rammed through under a gag so that we couldn't ventilate these issues relies on there being a final sentence.
KIERAN GILBERT: But have you got any advice to suggest that any of the individuals on Manus and Nauru are in that circumstance, where they've been found convicted and yet not sentenced? That seems like a very esoteric argument you make.
ATTORNEY-GENERAL: Well, it's not at all esoteric or hypothetical. Well, what we do…
KIERAN GILBERT: Are there examples of it?
ATTORNEY-GENERAL: Well, what we do know is that there are 300 people who, it appears, have already got or are close to getting certification from the two doctors. Now, we are in a race against time to try and go through each of those 300 to determine whether or not there are charges pending; whether or not they're awaiting trial; whether or not they're awaiting sentence; whether or not there are credible allegations; whether or not there's credible intelligence that an offence may have been committed…
KIERAN GILBERT: Surely you have some understanding on these islands already?
ATTORNEY-GENERAL: As I said in Parliament yesterday, there's been reporting and we are working through all of the cases that we think may be the subject of a medical transfer. But there's reporting of a potential transferee on Manus Island charged with four counts of sexual penetration of a minor under the PNG Summary Offences and Crimes Against Children Act …
KIERAN GILBERT: So not convicted?
ATTORNEY-GENERAL: Not convicted but…
KIERAN GILBERT: Alleged?
ATTORNEY-GENERAL: But - alleged, if you want to put it that way.
KIERAN GILBERT: Well, that's normally the way lawyers do it. Normally you do say alleged.
ATTORNEY-GENERAL: Well, I would say charged with a serious offence.
KIERAN GILBERT: Okay, well, say charged but you can't say rapist or criminal until they're convicted. That's the way the law works.
ATTORNEY-GENERAL: Well, we're- again, the point is this - that a person could be convicted of rape or murder but not yet sentenced and the Minister…
KIERAN GILBERT: But have you got any evidence of that happening?
ATTORNEY-GENERAL: Well, we are going through all of the people and we are in a race against time to do that. But the reality is that people who may have or have been charged or who are awaiting sentence or who are awaiting trial for serious criminal offences can now be brought to Australia and we have no ability to stop ….
KIERAN GILBERT: So, 800 people are in limbo, in continuing limbo, on the basis of this esoteric argument that you have got no - you've given me no evidence this morning that there are any individuals in this circumstance.
ATTORNEY-GENERAL: Well, there is…
KIERAN GILBERT: …convicted and awaiting sentence.
ATTORNEY-GENERAL: Well, there are many people there who have been charged. There are people who are awaiting trial under sovereign criminal processes of PNG…
KIERAN GILBERT: How many?
ATTORNEY-GENERAL: …and Nauru. Well, we are trying to ascertain that at the moment, Kieran. But the reality is this legislation was rammed through under a gag motion - we're now becoming aware that there are 300 people who have already taken the preliminary steps to effect their transfer, and resources and the effort that it takes to have security checks on a person's background to try and work out whether or not they're subject to charge ….
KIERAN GILBERT: Okay. Well, on the basis on what we've worked out so far, you've got no evidence to suggest any of them have been convicted and awaiting sentence. So on that basis, shouldn't the Government, from here on in, say alleged or charged with as opposed to rapists, paedophiles, criminals?
ATTORNEY-GENERAL: Well, we have used language, I think, in appropriate ways. I've very clearly set out in Parliament, in Question Time, how the law works. Very clearly set it out. Now, if someone wants to argue.
KIERAN GILBERT: But it'd be nice if the Government used the appropriate language - in the sense of alleged or charged with - as opposed to convicting the individuals before they have the right in court.
ATTORNEY-GENERAL: Well, again, I can put to you quite clearly that someone can be convicted of a serious criminal offence and we have no discretion …
KIERAN GILBERT: But we don't have any evidence of that. None.
ATTORNEY-GENERAL: Well, we are trying to gather that evidence at the moment but we …
KIERAN GILBERT: Well, at that point, why did you make the argument?
ATTORNEY-GENERAL: But Kieran, we did not bring this legislation into Parliament. We did not effect this change. And the reality is that it puts us, our government, our border protection, our security intelligence agencies, under enormous time pressure to try and work out who in that list of 300 people - and it will be a larger list than that - may have these issues attached to them.
KIERAN GILBERT: But isn't it fair that people would just expect you to be a bit more calm and measured in your language, as opposed to some of the warnings that we're hearing? It sounds like hyperbole.
ATTORNEY-GENERAL: I don't know that I've ever been lacking calm or measured language with respect to this.
KIERAN GILBERT: But you're not the only member of the government.
ATTORNEY-GENERAL: Well, the fact remains that you have a situation where someone can be accused of or awaiting trial or convicted of rape or murder, and we now have no discretion to stop them coming to Australia. That is an unarguable legal fact.
KIERAN GILBERT: Why not amend the bill? You change it. If it's that big a concern, why don't you change it?
ATTORNEY-GENERAL: Well, you saw what happened when this bill was passed. I mean, Labor had numbers in cohort with the Greens and independents to pass the bill. This is a bad law but it's a law that was forced upon this country with a gag motion, without adequate time to consider very serious issues like the one that we've been discussing this morning.
KIERAN GILBERT: Sure. But if it's that bad, change it.
ATTORNEY-GENERAL: Well, it's beyond our power to change a law that we don't have the numbers in Parliament to change, Kieran.
KIERAN GILBERT: Attorney, thanks for your time.
ATTORNEY-GENERAL: Thank you.