Senator the Hon Michaelia Cash
Shadow Attorney-General
Shadow Minister for Employment and Workplace Relations
Deputy Leader of the Opposition in the Senate
Senator for Western Australia
TRANSCRIPT
2GB Radio Afternoons with Michael McLaren
6 November 2024
TOPICS: NZYQ case
E&OE
Michael McLaren
We’ll get back to the situation in America later. I want to pivot, though, back domestically, because the pretty big news that has been drowned out in some respects due to the Presidential election – the high court here has ruled this morning that forcing former immigration detainees to wear ankle bracelets and live with curfews is at odds with the Constitution. Now, look, this is a big deal, and it all comes, of course, from the NZYQ case that was, I guess, the catalyst of where we’re at now. That led to 152 former immigration detainees being released. Many of these people had serious criminal convictions. This is all well understood, and yet they were let into the community. So the government, then, under big pressure, brought in new rules. That meant a whole host of detainees were given ankle monitors and placed on a curfew because they couldn’t be put into a detention center. So they thought they’d stick an ankle bracelet on them and put curfews around them, and that way we might be able to monitor them better. But thanks to another case, this one brought by YBFZ, the High Court has found the new law to be unconstitutional. So where does this leave us? Well, it leaves the parliament with a predicament. There’s no doubt about that. Michaelia Cash, as you know the Shadow Attorney-General. I think she jumped out of Senate estimates to speak to us. She’s on the line. Michaelia, thank you for your time.
Senator Cash
Great to be with you.
Michael McLaren
Okay, so where are we now?
Senator Cash
I don’t even know where to start. It is a huge blow for the Albanese Government. It is an embarrassing loss. They need to start taking the protection of Australia and Australians seriously. But what is worse, this is a scenario that Peter Dutton continually warned them about. We specifically sought assurances in relation to whether or not the Bill that they drafted was constitutionally sound. And guess what? They told us that it was. It clearly isn’t seriously. And this is half the problem with this government. They do not know what they are doing. They repeatedly assured us that the amendments that they drafted were sound, and as recently as Monday in Senate estimates, they promised they had comprehensive contingency plans in place if they were unsuccessful in this case. Well, guess what? Today, the Albanese Government failed in the High Court, and Minister Burke must stand up this afternoon with Prime Minister Albanese and immediately tell the Australian people what urgent action the government will take in response to this loss. They need to protect Australians from the dangerous criminals. And remember, Michael, these are non-citizens that the Albanese Government released into the community. Around 215 of them.
Michael McLaren
Okay, now you’re a lawyer by trade, so let me ask you this with that hat on. You explain it to me and my listeners who are not lawyers by trade, the argument here that the High Court heard, if I’m not mistaken, centred around whether or not the Federal Government has the jurisdiction to inflict punishment on people. The argument was no only the courts have that, and it seems that the High Court has so found, is that right?
Senator Cash
That is exactly right. So essentially, what the High Court has said is that the curfew and monitoring conditions are punitive, and on that basis, they are unconstitutional. So what this now means for the Australian people is that 215 dangerous non-citizen offenders, just to remind you, it includes murderers, sex offenders, people convicted of serious assault, domestic violence, a child sex offender – they will now be free in our community, without any monitoring or curfews. And specifically, as I said, we had sought assurances from Mr. Albanese and the former Minister about the constitutionality of their legislation. They provided us with those assurances. But on top of that, Michael, they told us they had consulted with their lawyers. They said they had consulted with the Solicitor General and that they were satisfied about the constitutionality. So our position is now this – the Government should be ready to introduce legislation into the House of Representatives today. The House of Representatives Michael is sitting and Peter Dutton has made it clear the Coalition again stands ready to facilitate the swift passage of any legislation required to fix the Government’s mess and keep Australians safe. The ball is squarely in the Prime Minister’s court, and he must urgently act today.
Michael McLaren
With your legal hat on Michaelia – if the High Court has found – they seem pretty clear here majority decision – that governments cannot inflict punishment on people, and I guess by extension, they are saying that ankle bracelets and curfews are a form of punishment, although the government tried to argue that wasn’t true. But they’ve obviously found that you can’t do this. So if that’s the case, that you can’t do this what legislation, what wording could be used in legislation to ensure that these people, 100, or what is 140 or so, are being effectively monitored. We can’t use ankle bracelets. We can’t keep them in detention. The previous case found that we can’t use curfews. What’s at their disposal?
Senator Cash
The Government could ultimately look at asking the courts themselves to impose these conditions. This is something that the Government should have worked through. The evidence that they gave in Senate estimates on Monday was that they had comprehensive contingency plans in place if they were unsuccessful in this case. Today, they have been unsuccessful. 215 dangerous non-citizen offenders, as a result of Mr. Albanese’s failure will now be free in the community without any monitoring or curfews. And as I said, Mr. Albanese or Mr. Burke, they’ve told the Senate estimates one thing, stand up immediately and reveal what urgent action. What is your contingency plan that you advised the Senate that you had to protect Australians from these dangerous criminals and non-citizens. And as I said, Peter Dutton has made it clear the coalition stands ready to facilitate the swift passage of legislation required to fix yet again Mr. Albanese mess, but more importantly, to keep Australians safe.
Michael McLaren
Everyone listening here agrees it is an omni shambles, and the loser here isn’t the Government – the loser is the Australian people.
Senator Cash
Absolutely.
Michael McLaren
We need, the Australian Parliament, all of us, to make sure, this is fixed. People listening Michaelia, and I think not everyone, but many would say, look, they’ve had two strikes now they’re stuffed – I wouldn’t give them a third crack. My point to you, I guess, is, assuming they don’t have the wherewithal between them to sort this out, maybe it’s over to you and the Opposition to put the draft legislation together. What can you do? As I said, you can’t use ankle bracelets. You can’t ankle bracelets, use curfews. You clearly can’t put them back in detention. So if you were the Minister, what would you do?
Senator Cash
Well, again, this is something that the government has already stated, that they have a contingency plan in place. So quite frankly, they need to bring out that contingency plan today. They could also look at asking the courts whether they are able to impose those conditions. They also have the community safety order regime. So what they need to do is stand up and tell the Australian people exactly what they are going to do. I think the greater failure here, though, is yet again – they mishandled the first case, the NZYQ case. They let these dangerous non-citizens out. We had to help them fix that mess. We specifically sought assurances from them. They have access to the constitutional lawyers. They have access to the Solicitor General. We specifically asked them about the constitutionality of their legislation, and they told us – yes, they were satisfied that it was. But more than that, in relation to the community safety order regime, the Government has serious questions to answer here. They have not applied for a single community safety order, and when Mr. Albanese and Mr. Burke stand up today, journalists should be demanding to know why this is. Preventative detention is this part of their contingency plan? And if it’s not, they better explain to the Australian people, why.
Michael McLaren
The big issue for Australia today, with respect for what happened in Washington today is that we are faced with this situation, and it’s obviously a complete mess for the whole country. It has to be sorted very, very quickly. But people are saying to me, and I don’t have the answer, again, I’m not legally trained. These people are not Australian citizens. How come the Australian Constitution is being evoked here, and somehow they’ve got rights under that? Can you just from a legal point of view, for people asking me explain how non-citizens are protected by provisions in the constitution?
Senator Cash
So what the Australian High Court said is you cannot detain someone if there is no reasonable prospect that you can return them – to put it in plain English so people understand. So that is the situation that we are in, which is why we will work with the Government in relation to the legislation that has today been overturned, to ensure that those in the community are able to be monitored, whether it was with the bracelet or the curfew. We asked the government at the time, is this constitutionally sound? In other words, will it withstand an appeal? And guess what? The government told us, yes, they were satisfied. And today shallow assurances, because yet again, this Government has failed the Australian people in terms of keeping us safe. But as I said, they’ve got to immediately reveal what their contingency plan is. They said they had one. The Parliament is sitting today – they could bring in the legislation, and Peter Dutton has made clear, the safety of Australians is our number one priority. We will stand ready to facilitate the swift passage of any legislation required to fix the Government’s mess, the Albanese government’s mess, and keep Australians safe.
Michael McLaren
The public will be watching with great anticipation. Thank you for jumping on.
Senator Cash
No worries. Take care.
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