Topics: Labor’s migration bill blunder;  

07:45AM AEDT
28 March 2024



Patricia Karvelas: The government’s controversial migration bill that could jail asylum seekers who refuse to cooperate with moves to deport them, was rejected by the Senate on the last sitting day before the budget. The Coalition and the Greens voted for the legislation to go to a Senate inquiry, saying they need more time to consider the bill’s implications and more time to question officials. Simon Birmingham is the Shadow Foreign Affairs Minister, and he joins me now. Simon Birmingham, welcome back to the program.


Simon Birmingham: Good morning, Patricia. Good to be with you.


Patricia Karvelas: Will you accept responsibility if the High Court orders more people to be released because of your failure to pass these laws?


Simon Birmingham: Patricia, that would be a preposterous situation. There has been no link drawn by the government to suggest the passage of these laws would have any bearing on a High Court case that may be determined in a few weeks’ time.


Patricia Karvelas: In fact, Claire O’Neil, the Home Affairs Minister, has said that these laws were constructed in with that looming case. It reports in mid-April. If that High Court case releases any of these people, will it be on you for not supporting the laws?


Simon Birmingham: No, Patricia. The government has not suggested that it believes these laws would change the verdict of the High Court. And certainly, officials at the very short couple of hours that the legislation could be scrutinised. Officials from the department definitely resisted making any such suggestion.


Patricia Karvelas: Okay, so the Home Affairs minister says, “I think the ASF17 case does show that it is important that we have these powers. It’s not the only reason why we’re doing this, though. It is very important that the Australian government move towards running a more orderly migration system.”
So, the government has linked it to that case. You’re saying it has no link?


Simon Birmingham: That is, that is not Patricia, as you put the question, any suggestion by the Minister that passing this legislation would change the verdict of the High Court.


Patricia Karvelas: So, no link at all in your view?


Simon Birmingham: Well, there has been no suggestion by the government that passing this legislation would change or alter whatever the verdict of the High Court in that case will be.


Patricia Karvelas: Okay.


Simon Birmingham: And that statement you just read does not suggest it would change or alter the verdict of the High Court either.


Patricia Karvelas: If in mid-April, the High Court releases some of these people. Then who will be responsible? Just the High Court? Or will you be holding the government to account for that?


Simon Birmingham: We will see what any verdict of the High Court is. But if we come back to this legislation, the government has not established that there was valid urgency for this legislation, nor have they been able to answer valid questions in relation to it. And indeed, on the last couple of occasions when the government has sought to put forward urgent legislation to the Parliament in relation to migration law, what’s transpired is that they’ve failed to actually even use that urgent legislation appropriately. We learned last night that the monitoring devices, the government passed laws to be able to apply to the 153 people released from a previous High Court decision that include rapists, murderers and serious violent offenders that 73 of those 152 people are not being monitored. We also know that of subsequent legislation passed through the Parliament quickly for community detention orders to be put in place for the safety of the community. The government hasn’t made one single application yet for one of those orders to be put in place. So, we’ve got a situation where the government has repeatedly now bowled up what it says is urgent legislation, but then doesn’t use it. They tried that again this week, but could not establish and would not put on the record rationale for why this was so urgent. Nor could they answer a lot of questions about who this would actually apply to and how it would be used.


Patricia Karvelas: So ultimately, is it your thinking that these laws may be not necessary at all?


Simon Birmingham: We believe these laws deserve the normal scrutiny of the Parliament. So, that’s why we move. We didn’t vote against them. They haven’t been rejected by the Senate as I think has been said on air this morning. What has occurred is they’ve been referred to a Senate inquiry that will report and conclude its work before the Senate sits again, so that they can be considered on the very next Senate sitting day, if that is the will of the Senate and the government at the time.


Patricia Karvelas: So, what reassurances do you need to pass the legislation?


Simon Birmingham: We just need the basic understanding as to how this legislation will work, who it is intended to apply to, and to ultimately assess any potential other implications of these laws, including whether they could create in any way a pull factor for boats to come to Australia or the like through unintended consequences of their operation.


Patricia Karvelas: Are you just trying to keep this issue on the agenda by extending this?


Simon Birmingham: No, Patricia, we’re trying to do the proper work of legislators. It should be the exception, not the norm, for the Parliament to pass laws in a period of 36 hours, which is essentially what the government sought to do on this case. Let’s remember this bill was presented to the Opposition on Tuesday morning. Now it was date stamped last Friday. So, if it was so important that it actually be passed this week, the government clearly could have released it last week and at least given a full week’s scrutiny for the legislation. But they chose not to do that. They chose to play whatever games they were playing by only providing it to the Opposition on Tuesday morning, wanting it passed through both houses of Parliament by Wednesday afternoon. We were responsible. We initially brought the Department of Home Affairs in Tuesday evening for a quick, short hearing to try to establish if the urgency the government said existed was there and not only were we not satisfied by that urgency, but nor were any of the Senate crossbench or the Greens.


Patricia Karvelas: No, that’s absolutely right. They were.


Simon Birmingham: Space to bring all of us together, to agree that there is a lack of urgency and a lack of transparency about this process. But we were all convinced of those problems, of the mishandling of the government on this issue, which is why we have referred it for a more normal Senate scrutiny process of a committee hearing, which, as I say, will report before the next Senate sitting day.


Patricia Karvelas: The Coalition in question time really zeroed in on these reports that Claire O’Neil left her departmental secretary, Stephanie Foster, in tears after a meeting. Stephanie Foster has since spoken, saying that not, you know, basically saying that that didn’t happen. Do you feel like that issue was settled?


Simon Birmingham: No Patricia, because what is particularly left unclear is whether the minister, Clare O’Neil, gave Stephanie Foster a dressing down because Stephanie Foster released information to a Senate estimates hearing. And if that is the case, if that is what Minister Clare O’Neil did, then that is an appalling disrespect for the Senate, an appalling approach to transparency and accountability, and indeed may be in breach of Senate orders in relation to how estimates hearings should work. Officials should be applauded when they appropriately give information to the Senate, answering directly questions not dressed down by their ministers.


Patricia Karvelas: Thank you so much for joining us this morning.


Simon Birmingham: Thanks, Patricia. My pleasure.