Skip to main content

6PR Mornings with Gareth Parker



Subjects: High Court decision; release of terrorist offenders; wage underpayments

GARETH PARKER: The Attorney-General and the Industrial Relations Minister is Christian Porter. He joins me from Canberra. Christian, good morning.

CHRISTIAN PORTER: Yeah, morning to you and all the listeners.

GARETH PARKER: The High Court yesterday - a very interesting decision which potentially has wide-ranging implications - it's essentially ruled that Aboriginal people, including those who are born overseas, cannot be deported even if they do not have Australian citizenship. And the reason that this was tested is because of your Government's policy that if someone is not an Australian citizen, they commit a serious crime, then the Government can make moves to deport them. That was tested by lawyers for two Aboriginal people born overseas but to Aboriginal parents; don't have Australian citizenship. The court says that doesn't matter. They cannot be deported because they are not aliens.

What do you make of this decision?

CHRISTIAN PORTER: Well, I think interesting is something of an understatement. It is, for a lawyer, fascinating. We will work through to see what sort of repercussions it might have in other areas, but you summarised it well. So, two individuals, Mr Thoms and a Mr Love, both non-citizens, so neither of them are Australian citizens, both of them had committed serious offences; pursuant to our Government's policy, which is designed to protect the Australian people, they had their relevant visas removed and (faced deportation). Each of them claimed in the High Court proceedings, Indigenous ancestry, and the court split four, three. It was a very close run thing. I must say, I find great strength of reasoning in the Chief Justice's decision but she was in the minority. But in any event, the majority, in affect determined as you've described, that the Commonwealth couldn't rely on what's known as the aliens power in the Constitution as empowering the Commonwealth through legislation to deport people who could prove Indigenous status, indigeneity.

Now, that obviously has very significant, immediate ramifications for what might not be a very large group of people but a group who will now have to be treated differently from all other persons in the same circumstances, and that group is people who are born overseas, who aren't Australian citizens, but may be able to show indigeneity and who are in Australia on a visa and commit an offence and we would otherwise want to deport them, consistent with all of our other policies in this area. So, it has a clear impact for that group of people and that policy of deporting people who've committed serious offences while on a visa and who are non-citizens, and we'll be looking into ways in which we might be able to effect that policy, without reliance on the power that we previously were relying on, but we'll look at that. But it may have broader implications.


CHRISTIAN PORTER: It's going to take some time to consider what those might be.

GARETH PARKER: Because it seems to me that it creates a new class of person within Australia: someone who is a non-citizen, born overseas, but if they can prove the tripartite test that was outlined in Mabo many years ago - so the three things that the court says you need to satisfy to prove that you are considered Aboriginal: that is that you have some biological connection; that you identify as an Aboriginal person; and that Elders accept you as an Aboriginal person. If you can satisfy those three tests, then you have a special status in this country, regardless of whether you are a citizen or not.

CHRISTIAN PORTER: We certainly fall into a different category of treatment with respect to this particular issue of deportation relying on the aliens power. No doubt about that. It creates an entirely new category of people in terms of what the Government can and can't do. And with respect to that test of indigeneity - not always simple. And the High Court itself, in the majority, with respect to one of the two people involved in the case, couldn't actually, on the facts, determine whether or not the person was Indigenous. Because, as you point out, it's about biology and genetics, one; two their identification within an Indigenous group here; but three, that Indigenous group's recognition of the person as belonging to that group. Now, that is not always an easy test to get an answer for.

So, look, you're right. It creates an entirely new category of treatment clearly with respect to this issue of deportation relying on the aliens power when an offence has been committed in Australia and someone is a non-citizen - completely different category. Whether or not the principle has application in areas where the Commonwealth relies on other heads of power, I think, is far less clear. But that's something that needs to be given some thought, and we'll do that. But at the moment, I think it can be said that the category is with respect to a very specific category of people in a specific circumstance, in specific reliance on what's known as the aliens power. But it is a pretty novel sort of a decision though, I'd have to say.

GARETH PARKER: Well, novel. So, I mean, you sound as though you are more persuaded by the minority justices than the majority justices.

CHRISTIAN PORTER: I absolutely am. I thought there was, in my legal view - and I'm not a High Court judge obviously - but I thought that the Chief Justice's reasoning and the minority reasoning was what I would have expected. But obviously, there were four judges who took one view and three judges in the minority who took another view, and that has implications for … what has been a programme of pretty vigorous deportation of people that we consider represent a threat to the Australian community and Australian citizens. And again, these two individuals were not Australian citizens. They were not born in Australia. They had been here on visas …

GARETH PARKER: But you can't deport them.

CHRISTIAN PORTER: … committed serious offences, and this limits our ability on the present processes that we've engaged in to deport people who are falling into that category, and that category now represents a novel treatment under Australian law. So we'll be looking into that very closely.

GARETH PARKER: Alright. Our time is brief. There's a couple of other things I want to get on to. The Australian newspaper has revealed today that there are 11 convicted terrorists currently in prison in Australian prisons due for release this year.

This is an issue that I canvassed with you, I think, last year. And the question that I still am not sure about is whether terrorists can, in fact, be rehabilitated, whether their attitudes can be changed. Is this an emerging national security threat?

CHRISTIAN PORTER: Well, whether someone can be rehabilitated, I mean, my sense of that is it's not impossible, but the primary consideration here is the protection of the Australian people. And one of the things that we have seen, particularly in the UK, is that people who have been convicted of serious terrorist offences - spend a serious amount of time in jail - have shown the propensity to be released from custody and commit other serious terrorist offences. That is just a fact that we have sadly witnessed in other jurisdictions. We've been very …

GARETH PARKER: Yep. And this jurisdiction.

CHRISTIAN PORTER: Indeed. And we have been very careful, as a Commonwealth Government in cooperation with the states, to make sure that states and the Commonwealth are empowered to make an application for what's known as a CDO, so a Continuing Detention Order - very similar to what your listeners would have seen in Western Australia with dangerous sex offenders. So the principle is that in circumstances where you can convince the court of that danger that we've just spoken about, there is a capacity for the court to exercise its discretion on an application to keep someone incarcerated for longer than their prison sentence, for the purpose of protecting public safety. Now, I mean, with people like Benbrika and others, I would argue that they are inherently dangerous individuals. We've seen instances where such individuals have gone to commit further offence, so what I would say to you and your listeners is that where applications are made by the Commonwealth through the Home Affairs Minister or the states - and both can make applications - that we would be making applications robustly, with the clear and primary intention of maximising protection for the Australian community.

GARETH PARKER: Okay. In the 30 seconds we have remaining, there seems to be a view that Fair Work shouldn't have named and shamed George Calombaris’ restaurant empire, for underpaying workers on the basis that they self-reported; and that naming and shaming led to the collapse of the company. What do you say about that?

CHRISTIAN PORTER: Look, I don't agree with that. I mean, we've provided $60 million in additional resources to the Fair Work Ombudsman. You know, compared to the previous government, they're recovering 64 per cent more money. The fact is that if you underpay your staff, there is neither good reason nor capability to keep that a secret. So, you remember that when the Calombaris matter happened and the Fair Work Ombudsman required a contrition payment, the argument at that point was - was the contrition payment sufficiently high enough? In fact, we discussed that on your show. Now, no doubt, at the time, the Fair Work Ombudsman is considering the overall financial stability of the business in question, because where businesses are suffering and perhaps teetering on the edge of insolvency…… you don't want to make a contrition payment so high that they tip over. That's not in anyone's interests. But nevertheless, contrition payments, the fact that these matters are public and publicly known and knowable seems to me to be important feature of the system…and if you are a business that underpays your staff, no doubt, there are going to be commercial ramifications to that because people think that is unfair because it is unfair, and they will take their business elsewhere.

GARETH PARKER: Thank you for your time.

CHRISTIAN PORTER: Okay. Cheers, Gareth.

GARETH PARKER: Christian Porter, Attorney-General.