Topics: High Court Benbrika; Dr Yang Hengjun; PNG refugee funds investigation; Israel

04:05PM AEDT


Matt Doran: The Home Affairs Minister Clare O’Neil wasn’t available for interview this Wednesday. Simon Birmingham is the shadow Foreign Minister. He’s acting as the shadow Home Affairs Minister at the moment and was a member of the Coalition’s cabinet for seven years while this legislation was being debated and enforced. Simon Birmingham, welcome back to Afternoon Briefing. I want to start with the High Court ruling today in the Benbrika case. Does the fact the High Court, for a second time, has struck out elements of these citizenship-stripping powers suggest that the former Coalition government overreached putting these powers in place?

Simon Birmingham: Well Matt, the High Court obviously comes to its own judgements and ultimately, we all have to respect those judgements of the court. What we were seeking to do as a government was to make sure that Mr Benbrika, who is a convicted terrorist and posed a genuine threat to the Australian community, was removed in terms of the threat that he could pose in the future. And our view is that the Albanese Government now needs to pursue every possible avenue to look at how they can remove that threat for the future in their response to this judgement that has been handed down.

Matt Doran: It was quite extraordinary though at the time to give all of that power to the Minister of the day, wasn’t it?

Simon Birmingham: Matt, of course, appropriate advice would have been sought in terms of the drafting of the legislation and the approaches undertaken. But there is no point quibbling with decisions or judgements of the High Court. The issue becomes of how you respond to those and that response now falls to the Government of the day, which is the Albanese Government. Our view – our approach was very clear; Mr Benbrika is a convicted terrorist; he posed a threat to the Australian community and we didn’t want him in the Australian community. Now it’s up to the Albanese Government as to how they now ensure that threat to the Australian community is removed and in this case, how Mr Benbrika is dealt with to remove that threat.

Matt Doran: Because certainly there will have to be a response here but at various stages throughout the Coalition’s time in government you had intelligence agencies raising concerns; the Independent National Security Legislation Monitor raising concerns about the operation of various parts of this legislation and you had lawyers saying it was not a great idea. Could this have been avoided with tweaks at the time rather than letting it get all the way to the High Court and now being left with a situation where there is a need to change the regime?

Simon Birmingham: I can only assume that actions were taken at the time based on the best possible advice available – the best advice about how to remove the threat posed by the convicted terrorist to Australia – as well as how to do so within the legal options that were available. And obviously they were pursued to try to give greater certainty in terms of the removal of the threat. Regrettably the decisions of the court have been taken – as I said, there is no choice for any government but to respect those decisions and so it is now upon the Government, the Albanese Labor Government as to how they’re going to try to act and respond to address this terrorist threat or potential in the future.

Matt Doran: The Prime Minister’s jumping on a plane and heading to China this weekend. This morning we have seen a letter released by the family of Doctor Yang Hengjun who has been in jail in China for a number of years now, pleading with the Prime Minister to make the case for his release. Do you think that since the release of Australian journalist, Cheng Lei, that it is a more likely prospect that some sort of clemency or humanitarian release could be offered to Dr Yang?

Simon Birmingham: This needs to be a top priority issue for Anthony Albanese on his visit to China. Dr Yang Hengjun has been detained for more than four years now; he is detained without certainty around his sentencing, so this is still an indefinite detention and the latest option for providing certainty around his sentencing was deferred and deferred out until January of next year. The circumstances of his crimes that he has been accused of and charged with are unclear as well. So, we have a situation of an arbitrary detention, and indefinite detention and that is completely unacceptable for an Australian citizen to face those circumstances of arbitrary and indefinite detention. That is why the Prime Minister needs to make sure this is top of his priority list for the representations he makes when he is in China. And yes, we should hope that Yang Hengjun, who is facing serious, serious concerns in terms of his health, the circumstances of his detention and he deserves the same type of advocacy as Cheng Lei and the same outcome ultimately, which is to be returned to Australia and reunited with his family.

Matt Doran: How difficult is it you negotiate with a country like China on an issue like this when their legal system is vastly different to that of Australia and to describe it as opaque may well be something of an understatement?

Simon Birmingham: Nobody underestimates the challenge in terms of working through these legal systems. What we have had is circumstances where Australia’s ambassadors to China have been denied access to the trials – or the so-called trials that have been undertaken – whereas, as I said before, the nature of the charges laid is not clear and where sentencing just doesn’t occur and just keeps getting delayed or deferred. So, these create enormous degrees of difficulty in terms of understanding precisely what it is you are responding to and the circumstances you are seeking to change. But ultimately, if China wants to see a stabilisation of relations with Australia, then Australians expect an Australian citizen, in Dr Yang Hengjun to be treated fairly and that means that arbitrary and indefinite detention should be ceased, and he should be safely returned to Australia.

Matt Doran: I want to take you to a story that broke yesterday with the Papua New Guinea Government launching an investigation into allegations of misusing of funds for refugee services in the country, funds that were provided by the Australian Government to deal with the legacy caseload of asylum seekers in the country after the closure of the Manus Island Detention Centre. How concerning is that there are these concerns around the misuse of funds and what do you think it will mean for that group who were still in Papua New Guinea, if they cannot get that support there?

Simon Birmingham: We should always expect to see funds used appropriately. Now these are rightly matters for Papua New Guinea in terms of any investigations it has into improper use of funds within its country or systems operating within its country. And we should show respect to those processes that Papua New Guinea may undertake, and also in giving that respect, any engagement that may be required from the Australian Government I would expect to be forthcoming in working with Papua New Guinea to uphold the types of standards that we would expect in Australia and that we should support being applied in all of our partner countries and particularly one with whom we have as close a relationship as Papua New Guinea.

Matt Doran: We are canvassing a lot of ground here, but I do want to take you to one final topic before I let you go, Simon Birmingham. The conflict in the Middle East; serious concerns remain about the fact that civilians are being caught up in this conflict, on both sides of the conflict. But are we giving too much attention or are certain leaders giving too much attention to the right for Israel to defend itself when there are many thousands of innocent Palestinians, including children, being caught up in the conflict and losing their lives as Israel responds to Hams’ attacks?

Simon Birmingham: The loss of innocent lives is a tragedy and whether that is an Israeli child, a Palestinian child, another child of any particular background, the loss of their lives or other innocent lives in war and conflict is always a tragedy and we should always want to see he loss of lives minimised and wish to see the rules of law and combat obeyed when it comes to international law. We have to remember the genesis of this goes back to October 7; Hamas lodging that appalling assault on Israel, which was a deliberate terrorist attack, a deliberate targeting by Hamas of children, of babies, of the elderly and doing so in a deliberate strike that saw the largest number of Jewish fatalities in a single day since the Holocaust. Israel has a right to defend itself and within that right, it has the right to remove Hamas as a terrorist threat to Israel and that does need to continue to be respected and acknowledged and while yes, of course we all grieve for the loss of innocent lives that occurs in a war situation that is occurring here, we do need to remember the objective which is to remove a terrorist threat and one that would we continue to pose a threat to other innocent lives were Hamas to be allowed to be continue. I hope and trust that Israel will use all resources they can to try to minimise or reduce that loss of innocent life and we wish to see humanitarian assistance get through wherever that is possible. But we cannot lose sight of the objective of removing the terrorist threat from Israel, which would only see further loss of innocent lives in the future were Hamas to continue with a position of power.

Matt Doran: Simon Birmingham, thanks for your time.

Simon Birmingham: My pleasure.