Member for Isaacs

Parliament House Press Conference 6 December 2023

06 December 2023

SUBJECTS: Citizenship loss laws, High Court NZYQ decision, High Risk Terrorist Offenders




SUBJECTS: Citizenship loss laws, High Court NZYQ decision, High Risk Terrorist Offenders

ATTORNEY-GENERAL MARK DREYFUS: When the Intelligence and Security Committee considered amendments to the citizenship loss regime in 2018, Labor members of the Committee said that Australians are not made safer by laws that are struck down by the High Court as unconstitutional. These remarks proved prescient: in 2022 and 2023, the two key citizenship cessation provisions in the Australian Citizenship Act were found unconstitutional by the High Court. As a consequence, decisions made by ministers, including by the now Leader of the Opposition, to revoke Australian citizenship from terrorist offenders, were also invalid. Every aspect of the Bill that we have in the Senate now has been carefully developed and deliberately targeted to ensure that the regime has the best prospects of withstanding any constitutional challenge. Both of the citizenship loss provisions introduced by Mr Dutton and the Coalition when in government were struck down by the High Court. We do not want to see that happen a third time. The government believes it has got the balance right, ensuring that we have the toughest possible laws within the constitutional limits set by the High Court. We also believe that the amendments proposed by the Opposition would increase the risk of the regime being found invalid by the High Court. The Government is committed to enacting laws that keep Australians safe and to repeat: Australians are not made safer by laws that are struck down by the High Court as unconstitutional. When it comes to national security legislation, the Government does not take a set and forget approach. The amendments that the opposition has proposed can and should be considered as part of the inquiry by the Parliamentary Joint Committee on Intelligence and Security, which will commence immediately following the passage of this bill. I'll hand to my colleagues Clare O'Neil and Andrew Giles.

MINISTER FOR HOME AFFAIRS CLARE O'NEIL: Thanks Attorney-General. A week ago now I introduced new, constitutional citizenship cessation laws to the parliament. We have offered the Coalition every possible opportunity to work with us on this Bill. They have been briefed multiple times. We have talked to them about the possibility of working with them on amendments. They initially said they would support the bill, they have then backtracked on that. They have been playing political games with national security law now for this last week, it is time for that to end. We would like this Bill through the Parliament today. We will put this to the Senate at some stage over the next couple of hours. We want it to be passed. We expect the Coalition to support this Bill and we want to bring it back to the House of Representatives where we also expect it to receive their support. Now the Attorney-General has gone through a little bit of the history. Let's just remember here that this will be our third go as a Parliament at making citizenship laws. Peter Dutton has already stuffed this up twice, do not make these laws unconstitutional again. We have an opportunity here, a rare opportunity, to put in place a piece of our national security architecture, we are confident these laws are constitutional. Don't stuff it up again by playing games as the Coalition has been doing for this past week. We want these laws to work. We want them to be passed today. And I urge the Coalition: stop playing games, come into the Parliament and do your job and vote for these laws.

MINISTER FOR IMMIGRATION ANDREW GILES: We've already begun working through the worst offenders to make sure that we can do everything we can to keep the community safe, ensuring, of course, that we are putting in place effective applications to the court which involves, as I'm sure you would appreciate, working very closely with the states.

GILES: Thank you Clare, thank you Mark. Today, the parliament will pass the government's bill to implement a preventative detention regime and also provide for new criminal offences. And we are absolutely determined to get this done today. Now the intention of this scheme is to capture those individuals who pose an unacceptable risk of harming the community through committing a serious, violent or sexual offence. This proposed preventative detention regime would allow for a court to detain the worst of the worst offenders. And in anticipation of this, I've already begun engaging with state and territory colleagues as well as other preparations to ensure that we are ready to go to do everything possible to keep the community safe. Now, we look forward to the Opposition's commitment today for full support for the swift passage of this legislation through the House. And I want to just say this, I want to really thank the AFP and Border Force for their hard work alongside state and territory law enforcement officials to keep Australians safe. And to say this again, through Operation AEGIS we have been determined to work day and night to do everything possible within the legal framework, which will be expanded today to keep the community safe. And of course the reality is this: the Government did not choose this situation, this was a situation imposed upon us by the decision of the High Court. But later today, we will have the legislative framework in place to protect the community through strong laws, and in particular, a robust preventative detention regime. And I join Minister O'Neil, in calling on the Opposition, on this occasion, to put politics to one side and help us get these laws through the Parliament.

REPORTER: Can I ask on preventative detention legislation, how many of the released detainees will you make immediate applications for through the court?

GILES: We've already begun working through the worst offenders to make sure that we can do everything we can to keep the community safe, ensuring, of course, that we are putting in place effective applications to the court which involves, as I'm sure you would appreciate, working very closely with the states.

REPORTER: The legislation says that there needs to be a high probability that these people are going to reoffend. Does that mean that there's actually very few people that it captures?

GILES: I'm not going to speculate on that. What I am determined to do is to work with firstly, the officials of the Commonwealth and then with the states to ensure that we are prepared for every high risk offender to make sure that we can get the best application in as quickly as possible.

REPORTER: Minister Giles, all of you have said you can't comment on individual cases. Why won't you provide a list of the number of types of offenders among the released cohort, and also a breakdown of how many of these released detainees are in each state and territory? None of that is individual identifying information. You promised it to the Opposition, you just released a dashboard that was much broader, it only talked about the categories under the Migration Act character test. Will you release a list of how many and what offences are among the cohort that has been released today?

GILES: As you said, we did provide information to the Opposition following their request. As you also identified, there are difficulties in some instances with providing detailed information for the reasons you've identified. We've got to get the balance right between providing information to the community whilst not particularly prejudicing other legal responsibilities or other causes of action.

REPORTER: Minister Giles, how do you justify these laws? You know, there's the Greens argument, these are for future crimes, preventative detention? How does that sit with you that you're locking people up, potentially for something that they might do?

GILES: Well, I'm really disappointed at the contribution of the Greens on this because this is not a novel concept. We already have a preventative detention regime which deals with high risk terror offenders. And I'd say here, the risk is clearer because we are dealing with people who have already committed offences, people who have already committed serious offences, and in respect of whom there may well be, and I'm of course not commenting on any individual applications, there may well be evidence which goes to the propensity of reoffending. We know that it is absolutely imperative that we do everything possible and lawful to keep the community safe. And that is why this is a regime that ultimately is determined by a judge in recognition of the decision of the Court last week.

REPORTER: Can you give us an update, has there been any more than the three people already known about who have allegedly reoffended? How many might have breached their visa conditions, quite separate to criminal offences? And how quickly would you anticipate that these applications that you're preparing could be put into effect?

GILES: On the applications, as I said, we've already begun preparations to ensure that we can do all that we can as quickly as we can, noting that this will require detailed engagement with the states and possibly territories as well. Well, as soon as possible to get high quality applications in because we need to make sure that the court is placed to make the decisions we need it to make to keep the community safe. On the other matters, these are of course operational questions, and I imagine the ABF or Operation AEGIS can provide you with those informations. The practice we set out earlier at the press conference that we conducted a week or so ago made very clear that the ABF would provide those operational updates.

REPORTER: The Government's been very critical of Peter Dutton this week for not having deported the people that were released as a result of the NZYQ High Court decision. How many of the people released has there been any attempts to resettle in a third country?

O'NEIL: I'm not going to get into the operations of all this Paul, I think you've written extensively about the court case and our efforts to deport the person at the heart of the court case. I just make the point to you again, that Peter Dutton created a circumstance where this person was allowed into Australia. We tried to deport him, that's your example.

REPORTER: Is there any prospect of them being deported if you do the rush to the Five Eyes countries that you did for NZYQ, for the other 147 of them?

O'NEIL: We will make our best efforts to deport people where that is possible, I think the NZYQ judgment makes it quite clear that there is a cohort of people in this country who the former government was not able to remove and we will also struggle to remove. That doesn't mean that we give up,

REPORTER: Minister Giles, this morning we heard that National Cabinet, the states and territories were briefed on this situation. Were they provided a list of what these high priority applications would be going forward?

GILES: Well obviously, I'm not aware of what happened within the National Cabinet. But it's been clear that ABF and I believe Operation AEGIS more broadly provided that briefing.

REPORTER: What's the long term plan for these detainees? Are we just gonna end up the situation again after this where they're going to end up being detained indefinitely for years, potentially, if we can't send them back to their home countries?

GILES: Well, obviously part of your answer has been dealt with by the decision of the High Court. What we are working on, as Minister O'Neil made very clear, is to make sure we leave no stone unturned in managing this cohort. Unlike the former government, who spent nine years doing absolutely nothing other than ignoring a very significant problem and now, in opposition playing politics with it, we will be taking every option that is available to us to managing this cohort. But of course, that starts with taking the steps which we're outlining today which are all about ensuring community safety,

O'NEIL: I just invite you to consider that one of the Government's approaches to this particular problem is to create layers of protection for the community. Preventative detention is necessarily a focus of the conversation today because that's before the Parliament. But remember, since the High Court's decision, we have stood up a joint ABF-AFP police response with significant additional resourcing. We have created a new framework for us to protect people in the community, while these people are in the community and the preventative detention framework. Now, we're not going to stop there. The safety of the Australian community is paramount to us but this is not just about one of these things, it's about layers of protection.

REPORTER: Minister Giles, are you being informed as soon as possible in the event that a released detainee has been arrested? Does that information get to you as fast as possible? And are you aware of any further arrests beyond the three that have been in the media? And on the passage of the law tonight, does that change the thinking inside the Government, inside the Department, on whether to release any of the detainees currently in detention?

GILES: Well, the whole point of setting up Operation AEGIS and indeed before we set up Operation AEGIS, before the High Court hearing took place, was to ensure that we had a high level of coordination with the states and territories. So that has been an absolute focus, at an operational level, of our activities. And that goes to your second question, which is really a question to the ABF or the AFP.

REPORTER: Do you know if there are any more than three?

GILES: We are working very closely through Operation AEGIS to manage all of these issues. And sorry what was your last question, David?

REPORTER: Does the passage of the law tonight change any of thinking within the Government on whether somebody has to be released based on the High Court decision? And I guess the other related question to that is, with the passage of the law tonight, is there a scenario where somebody may have to be released in the wake of a High Court decision that is immediately then subject to a court proceeding to put them back in detention straightaway?

GILES: Well, I think the answer to your first question is, that's a legal question. It would be, in my view though, very unlikely that there would be any impact of this regime having any impact on that question. The purpose of this is to deal with people who have been released into the community, who are a risk to the community.

REPORTER: Do you require the states to pass any legislation to complement this regime?

GILES: I don't believe so, no.

REPORTER: One of the claims the Opposition's been making is that you released 130, 140 people before the High Court had released its reasons, and they keep insinuating that maybe that wasn't necessary, you only had to release the actual plaintiff in the original case. Can you explain why so many people were released, and this is a genuine request for information, and on what basis given we hadn't seen the reasons?

DREYFUS: What the Opposition has said is simply not true. I had a statement that I made tabled in the Senate yesterday and it makes it very clear, the decision of the High Court sets a new limit on the power to detain anyone, anyone in the same position as the plaintiff in that case and it had to be implemented immediately. As you'd expect, the Department of Home Affairs is now undertaking an expert assessment to determine which people in detention are covered by the High Court's decision. Once that assessment is complete - and the criterion is not anything to do with the nature of the person, it's to do with whether or not there is a real possibility of them being removed to another country - once that assessment is complete any delay on the part of the government in releasing such a person would expose the Commonwealth officials concerned to personal liability for false imprisonment. The Albanese Government can not and would not ask a Commonwealth official to break the law. And that, apparently, is what Peter Dutton is asking us to do - to break the law. And that's what we will not do. We will not expose Commonwealth officials to being sued, or to disciplinary action, or the Commonwealth to potentially large awards of damages against the Commonwealth for breaking the law.

O'NEIL: Mark's done the law, let me do the political bit. What the Coalition is saying is absolute garbage. And they know that, they know that they are out there telling lies. And they have been playing politics with this for weeks. And I get that you all have to report that but let's call it for what it is: garbage and lies.

REPORTER: Mr Dreyfus, when you started practicing four years ago, could you imagine at one point that in the future, you would be an Attorney-General who would assist in the creation of laws that pre-emptively detains someone on the basis that they may commit a crime? And secondly, where does a regime like this end? You know if Mark Riley buys a Ferrari, could he be arrested for pre-emptively maybe speeding?

DREYFUS: Since you're going way back in time, the only time I've worked in politics before becoming a solicitor and a barrister was when I worked for the Victorian Attorney-General in the 80s, which is when the Victorian Government got to the regime that we now see in every state which is preventative detention for sex offenders. A couple of states also have preventative detention regimes for violent offenders or another range of serious offences. And over time, since I started in practice, all Australian jurisdictions have come to adopt preventative detention regimes, which as the High Court has made clear in the reasons for decision in NZYQ, is a power to be exercised by a court. On the application of a Minister to be sure, but the power is there to be exercised by a court. There are many things made crystal clear by the High Court's decision, but that's one of them. And it's to say that ministers have no power to detain, that is a power preserved for the courts, and, as the High Court also makes clear, it's to deal with a real probability of serious offending. That's what the state and territory schemes look at. That's what the High Risk Terrorist Offenders scheme that was put in place in 2019 looks at. That's the model which the Opposition is calling for our legislation to be modelled on and it is.

REPORTER: You said that Labor won't open itself up to passing legislation that could open the Government up to compensation, but you already have, haven't you? There are legal challenges afoot, just relating to additional visa conditions. So is that now just a risk that Labor is willing to take to keep the community safe?

DREYFUS: Not passing legislation that would open up the Commonwealth to a claim for compensation, what I directly said is that we won't be giving instructions to Commonwealth officials, as Mr Dutton apparently wishes us to do, to instruct them to break the law or to expose them to claims for compensation or to expose the Commonwealth to claims for compensation because of that law breaking.

REPORTER: Are you concerned that the Commonwealth will be subject to claims for compensation?

DREYFUS: That's asking me do I worry about the Commonwealth observing the law and the rule of law in this country. We are aiming here at constitutional legislation, that is always our objective. And it stands in very sharp distinction to the mess left by Mr Dutton with unconstitutional laws that do not keep Australians safe and are no way to govern our country.

REPORTER: Minister Giles, you're refusing to say how many of these people that have been released will be subject to applications to the courts. Your senior minister has repeatedly said that if it was up to her every one of this cohort would be locked up again. Why don't the public have a right to know how many people will be subject to these applications? And is it because, as the Opposition argues, it is actually only going to be a small number because there is only a small number this cohort that will meet those two thresholds of this preventive detention, not only committing a serious offence, both of violent, sexual, and also having a likelihood of reoffending?

GILES: Two things, Matt, in response to that. The first one is it seems to me more than passing strange that this regime that the opposition called for, they now appear to be talking down. It just shows once again, their absolute determination to play politics at every turn with these complicated but important issues. In terms of your substantive question, I'm sure you would appreciate that the legislation that I hope will be passed in the House of Representatives this afternoon, requires me to make an individual assessment before each application. But I cannot pre-empt that. I could only pre-empt that if I was not taking seriously my responsibility to get the best outcomes for community safety. And as the Attorney said, and as the Minister of Home Affairs said, we are a government that abides by the law.

REPORTER: Do you have the number of people that qualify for that first threshold, the seven plus years of imprisonment? Working with the states already, you've said, do you have that number? And what is that?

GILES: We're working through that at the moment.

REPORTER: Further to that, and to Matt's question, surely you have that number? How many, for example, have committed a murder or an unlawful killing? You surely know that number?

GILES: The issue that I just went through, in respect of Matt's question, goes to the question of the decision that I'm required to make before asking the court to make a decision. And I can't be in a position where I'm seen as being pre-empting that. I just got to be very clear about that.

REPORTER: (indistinct)

GILES: No, Andrew, that's not right. That is not right. Again, I'll just make the same answer I was trying to make before. The question really is, how do I make the best possible application that is most likely to be successful? That is my job. And I have to do that on the basis of the law.

REPORTER: On the state's preventative detention laws the Attorney-General referred to, is this cohort not subjected to them? And just secondly, you're now passing laws that only apply to a particular cohort of people, those people who do not have visas who have committed crimes, who've been in detention in Australia. There are people who have committed equally egregious, probably worse crimes than these people in the community, thousands of them - I'm not telling you anything you don't know - who will not be subjected to these laws, nor will they be subjected to state and preventative detention laws, because they're not uniform. Aren't you just creating two categories of law here, one for people who have served their time, been in detention for years beyond that, and then been deemed to be a risk to the community, because they don't have a visa, and others, who are in the same situation, perhaps a greater risk to the community, who just happen to be Australian citizens who are out in the community?

DREYFUS: A couple of things in answer to that question, Mark. The first is that the High Court has made clear that it is a question for a court. So the judges who are going to be determining applications brought by the Minister for someone to be placed in preventative detention. We'll be looking, I imagine, at those state regimes, because decisions made under those state regimes will necessarily inform the way in which the judges, in considering orders to be made under this Commonwealth scheme, should go. And we've got quite a lot of law over the last 30 years or so since these preventative detention schemes have been in existence that is that is going to inform the decisions that courts will make. The High Court's made it clear that not only is it a matter for a court to decide, and there's no lawful way in which a minister can be empowered to detain someone. Not only have they made that clear, they've said that it is for the purpose of community safety, and they're looking at serious offending, a high probability of serious offending. And that's the way all of the state schemes work. That's the way the High Court that when the High Court upheld the High Risk Terrorist Offenders Scheme, in response to a challenge brought by Mr Benbrika, they did say that it is open to Parliament to legislate in this way. But they've put a pretty tight fence around it.

REPORTER: They are treated differently Australian citizens on the basis they don't have a visa.

DREYFUS: And they are, because they are people who do not have a visa. They are non citizens, and they have all, at this point, been determined to be people who should be removed from Australia. That makes them a very different category of people from Australian citizens who of course cannot be removed from Australia.

REPORTER: Either to you or the Attorney-General, but on Benbrika, one of the reasons that he's now going to be released on an Extended Supervision Order, as opposed to the Continuing Detention, was the VERA Corner Report that showed that the assessment tool use to show how risky he was ineffective. Are you sure that these new laws are underpinned by a watertight assessment tool, that is not open to legal challenges and people released? And to minister Giles, you've actually told the parliament there are 10 murderers and several sex offenders, so why backflip on the transparency?

DREYFUS: question, the government is now waiting for a decision of Justice Elizabeth Hollingworth in the Supreme Court of Victoria, who completed her hearing on the two matters concerning Benbrika that she is determining. The first matter she is determining is whether or not the Continuing Detention Order that was made against him, when sought by the former government should be vacated because of the former government's failure to put relevant exculpatory material before the court. That's issue one. The second issue is what should happen to Mr. Benbrika at the conclusion of his Current Continuing Detention Order, which is the 23rd of December. And one outcome as you canvass in your question, is that the court will determine that an Extended Supervision Order should apply to Mr. Benbrika. So having outlined to you what are the two decisions that Justice Hollingworth is going to pronounce on before the 23rd of December, I'm not going to go further because the matter is with her.

REPORTER: Assessment tools that you're using....

DREYFUS: I'm the Minister responsible for the High Risk Terrorist Offenders Scheme. And it's not the case that there is required to be an assessment tool. That is not the question that the court looks at. The court looks at the question, and it's a factual question for the court to determine whether or not there is a high probability of the person concerned who must be someone who has already been convicted of a serious terrorist offence under the Criminal Code. The question for the court is whether there's a high probability that that person is likely to commit another serious terrorist offence. That's determined by a court on ordinary principles of admissible evidence and ordinary principles of judicial reasoning.

REPORTER: (unclear)

GILES: I've already answered the question.

REPORTER: You've actually said some of the numbers in Parliament.

GILES: I gave you the answer I gave in Parliament and then I've asked the question.

REPORTER: Do you owe an apology to those in the community that have been subjected to misdeeds by some of these people?

O'NEIL: The reason that these people have been released from immigration detention is because the High Court has made a decision. That means it is illegal for us to continue to detain them. And I have been happy to say on many occasions, that if I had any legal power to retain all of these people, I would do it immediately. I would do it immediately. So what you have seen the government do is put in place, I have to say, extensive legislation and layers of protection for the Australian community. The job of the three of us is to protect the Australian community within the Australian law and that is exactly what we're focused on.

REPORTER: (unclear)

DREYFUS: I want to suggest to you that that question is an absurd question. You are asking a cabinet minister, three ministers of the Crown to apologise for upholding the law of Australia for acting in accordance with the law of Australia for following the instructions of the High Court of Australia. I will not be apologising for upholding the law. I will not be apologising for pursuing the rule of law. And I will not be apologising for acting - do not interrupt - I will not be apologising for acting in accordance with a High Court decision. Your question is an absurd one.

REPORTER: The end game, do you anticipate that there will be people subjected to preventive detention orders for decades for the rest of your life? Is this where it goes? Essentially, because these people will not be able to be deported, they won't be able to return to their home country they have no country status. Is that is that the practical effect of these laws? Will these people be spending decades potentially, in detention? And secondly, did you overstep the mark in calling Peter Dutton last week a protector of paedophiles?

O'NEIL: So the legislation, as the Coalition called for is based on the HRTO regime, it includes regular reassessments of the risk that the person represents to the community. I am not going to apologise for wanting to redetain people who are an unmanageable risk to the community. I'm just not. I'm just not. Continuous assessments will be made but if people are put behind bars for long periods of time to prevent them from hurting Australians, I'm happy to stand behind that. And with regard to my language regarding Peter Dutton, I don't apologise, no.

REPORTER: I just want to give all three of you the opportunity to acknowledge that there is a concern in the community about safety. And it's not necessarily about apologising for upholding the law. But there are concerns about the pace of the Government's response, the way that the Government has communicated to the public. This is only the second time you have fronted journalists in Canberra on these issues since the High Court decision. Would you like an opportunity to talk to Australians about why the last four weeks have played out the way they have? It's not about apologising.

O'NEIL: Let me answer your question. So I dispute your interpretation of the events, and let me take you through it. There is concern in the community about safety. And that concerns well founded because of what we saw happen in previous days. And that is why every single moment of every single day since this High Court decision, and indeed before it, the Government has been trying to find solutions to keep the community safe. Now for 20 years, in fact, for longer, ministers have had the power to detain people at will in a way that the High Court has just declared unconstitutional. That decision would have been made whoever was in government at the time. Now in the time that that decision has been made, within one week and one day of the High Court decision, we had created bespoke visa for each of the people released, we had created a $255 million joint operation between police and ABF, which is case managing these people and liaising with state governments. We had passed a new law which enabled us to protect the community in ways that the Commonwealth has not done before. Then, less than a week since the High Court's reasons for decision, we have constructed a preventative detention regime that will be going through the Parliament, I hope with the Coalition's support, just over a week since the reasons for decision were given. Now I sat through ten years of a Coalition Government that dragged its feet when any type of problem came up. I watched them do nothing while people died in aged care during COVID. I watched them give billions of dollars to companies that were making more money during COVID and doing nothing about it. We saw Scott Morrison going to Hawaii in the middle of the bushfires. Now that is not the approach of our government. You can decide whether we've got the politics right or not. That is not my game. My game is doing my job and doing everything I can every day to protect Australians and that is what we have been doing since the High Court's decision. Okay. Thanks, everyone.