THE HON MARK DREYFUS KC MP
MEMBER FOR ISAACS
WEDNESDAY, 6 DECEMBER 2023
SUBJECT: Citizenship, High Court NZYQ decision, National Firearms Register; Hamas attack on Israel.
LAURA TINGLE: Attorney-General, the politics of the issue have obviously been played very hard in recent weeks, as reflected in that exchange this morning. But can we just ignore Peter Dutton for a moment and walk through the legalities with viewers? We now have the reasons for the High Court's decision and the Government is rushing legislation through for a detention regime. If the High Court says it's unlawful to indefinitely detain people who cannot be deported from Australia, how does the Government's detention legislation get around that?
ATTORNEY-GENERAL MARK DREYFUS: It's not a matter of getting around what the High Court has said in making its orders and in expressing its reasons. The Government of Australia is bound to follow what the High Court says. And so what the High Court said very, very clearly is that it is not within our constitution for a minister using powers that are migration powers to detain someone who is a non-citizen.
TINGLE: So how do you legally do it?
ATTORNEY-GENERAL: Well, what we've done is to immediately legislate following the High Court making orders, tweak that legislation following the giving of reasons by the High Court, which was only just last Tuesday of last week. And in addition, we now have in the parliament laws which again follow the High Court's judgment and create a scheme of preventative detention. The High Court in its judgment said it's open to the government, and it's already said this in the previous decision about the High Risk Terrorist Offenders scheme, the High Court said it's open to the government to create a scheme of preventative detention, where a minister makes application to a court and a judge decides that a particular person poses a risk and warrants a preventative detention order. So that's what the legislation says.
TINGLE: So that deals with, shall we say, the separation of powers by getting the judge to do it. But you're copying, as you say, the counter-terrorism laws as a model. Why are you confident these will work? For starters, presumably, they're relying on a different constitutional power, because the counter-terrorism laws rely on the defence power.
ATTORNEY-GENERAL: We're following the reasons of the High Court which has said that, provided it's done by a court, provided that the objective is community safety, as of course, that's the government's concern as well, then it's open to the government to legislate.
TINGLE: Australian citizens who have been convicted of serious crimes serve their time and are released all the time. Now, if there's a difference in the treatment between citizens and non-citizens, doesn't that suggest the new laws are for purposes of punishment rather than community protection? And as a result, doesn't that make them subject to challenge given what you've just told us about the High Court’s position?
ATTORNEY-GENERAL: We're following what the High Court said here, the High Court said that detention is a punishment. That's why it has to be imposed, if it's imposed at all, by a judge. And it has to have the purpose of protecting the community at its heart, that's the heart of the decision. There has to be an assessment made by the court, that there's a probability, high probability, of the person concerned committing some further offence.
TINGLE: Do you regret that the Government has allowed itself to be panicked into its response to a really complex legal question by populist politics from the Opposition, that you've essentially sort of fanned the hysteria about this?
ATTORNEY-GENERAL: I regret the, to use your phrase Laura, regret the populist politics from the Opposition. It's a real concern to us that the Opposition Leader appears to have suggested from time to time in this debate that we should break the law. The Opposition Leader has suggested that we should direct public servants and Border Force officers to break the law. We're not going to do that. We're not going to expose the Commonwealth to large compensation claims. And most of all, as I've said repeatedly over the last few years, unconstitutional laws that are subject to being struck down by the High Court don't make Australia safe at all.
TINGLE: What legal reasons are there to stop the Government giving us more information about the nature of offences involved with this group of people? And how serious they are? I mean, particularly given several individuals details have been made explicit. Don't we have a right to know?
ATTORNEY-GENERAL: There's privacy reasons, very important. And there's a problem about the Government making statements about any individuals when the Government has to make decisions and decisions made by government ministers are subject to challenge. So there's a whole lot of reasons for being pretty circumspect about what is said publicly, we don't want to prejudice trials. We don't want to prejudice the prosecution process.
TINGLE: On another matter, you've pushed ahead at the National Cabinet today with the National Gun Register. We have got some laws here. What's the difference? What's been achieved today?
ATTORNEY-GENERAL: This follows on from the fine work that was done by John Howard then. One of the missing pieces has been this National Gun Register to increase the amount of information that is available in particular to police officers. It's been given new impetus by the shocking murders of the two Queensland Police officers at Wieambilla last December, and the neighbour, the Good Samaritan neighbour who went to their aid, all murdered. And in future, with this National Gun Register in place, police officers will know much more about where guns are, who's got guns. It'll keep police safer, it'll keep the community safer.
TINGLE: You're also pushing through parliament today legislation on Nazi symbols. Both the Jewish community in Australia and those who have connections in Gaza are deeply distressed obviously by events in the Middle East right now. But is Louise Adler right, that the lessons of the Second World War, that we should never look away, that it's incumbent upon us to look at what is happening in Gaza now and to say, we will not accept this, we will not accept this in our name?
ATTORNEY-GENERAL: It's important that people be able to express their views. I've looked on since the appalling atrocities of October the 7th in the south of Israel, the appalling atrocities committed by Hamas, which we're still getting even more horrible detail about as each day passes. And I've looked on at the terrible loss of life in Gaza, which anybody looking on would be concerned about. These are very difficult issues. People right across our community are very passionate about these issues. I would urge people to try to protect the tremendous value of the multicultural society that we've got, the acceptance of difference that's a real hallmark in Australia. We are a successful multicultural society. I want to hang on to that. And it's really important that we do so, that we be respectful in the way in which we protest, respectful in the way in which we speak about these issues, and try and be understanding of the perspectives that different people bring to bear.
TINGLE: Mark Dreyfus, thanks so much for talking to us tonight.
ATTORNEY-GENERAL: Thank you very much, Laura.