Thursday, 21 February 2019

Breakfast on RN with Fran Kelly



Subjects: Medevac, AWU raids, Helloworld

FRAN KELLY: Well, the Morrison Government is intensifying its warning that Labor support for the medical transfer of refugees and asylum seekers will weaken our borders by dismantling offshore processing. The Government says it now has legal advice from the Australian Government solicitor showing that it has no power to return people to Nauru and Manus Island once they've been treated in Australia, most likely on Christmas Island. The Attorney-General Christian Porter joins us in our Parliament House. Attorney-General welcome back to Breakfast.

ATTORNEY-GENERAL: Good to be here.

FRAN KELLY: What is in this legal advice that shows the Government wouldn't have the authority to return asylum seekers offshore?

ATTORNEY-GENERAL: We'll simply put - medical transfers of course have been conducted by this Government under an existing provision of the Migration Act, we would say efficiently in a very low key way that provision interconnects with other provisions in the Act; which provisions empower us, provide us with the lawful authority to return someone once they've been medically transferred to Australia back to Nauru or Manus. And the advice that we've received is that there is a very significant drafting error in the bill that Labor pushed through the Parliament which doesn't connect its new version of medical transfers, which are controlled obviously by doctors with very minimal discretion on the Minister. It doesn't connect that new version of medical transfers to the existing provisions that underwrite the Government's lawful ability to return people to Manus and Nauru. So the end effect is through a very considerable and serious legal loophole and poor drafting, people would be transferred medically on the request of two doctors from Manus and Nauru; they've come from a place where they're not in detention, where they are in the community; they'd be placed in detention on Christmas Island for medical assessment and we would have no lawful authority it appears to return them to Manus or Nauru.

FRAN KELLY: Labor is challenging this. Labor shadow Minister, Shayne Neumann says there's no change to the system of returns if a person is transferred to Australia for temporary medical treatment, we will return them to Manus and Nauru once doctors' advice they have completed medical treatment. He says…

ATTORNEY-GENERAL: He may say that…

FRAN KELLY: … it's a desperate distraction from a Government trying to hide from scandals.

ATTORNEY-GENERAL: He may say that but you would need to tell us what legal authority; what provision of the Act that you'd be removing people. So - I mean for your listeners, we'll put out a summary of this so that it could be tested and no doubt a range of migration lawyers will be very interested in it but there are provisions in section 198 1A, AD, AH which usually underpin the return of a medical transferee. And they, according to our advice, do not apply to this new Labor provision.

FRAN KELLY: So couldn't this just be amended? Can you amend the legislation to link it to section 198A of the Migration Act?

ATTORNEY-GENERAL: Well, the first thing we'll do is…

FRAN KELLY: Sounds like a pretty simple solution, doesn't it?

ATTORNEY-GENERAL: Well, you know, it wasn't a problem a couple of weeks ago, Sabra. This week…

FRAN KELLY: I'm not Sabra, I'm Fran.

ATTORNEY-GENERAL: Oh sorry, Fran. It wasn't a problem a couple of weeks ago, Fran. I mean it just - it's one of those things that Labor in its haste, without debate and forcing it through the Parliament has brought on the Australian people. Obviously, we'll be looking for ways to fix this; the first thing that we'll do is look to see if there's any additional powers or any extraordinary powers that we've not thought of rather than the usual powers that don't seem to apply. And obviously, in due course, this might need to be legislated for and you might need to do that retrospectively because we're looking down the barrel of hundreds of arrivals very soon.

FRAN KELLY: Well, you could bring it in today. This Medevac Bill has been in the works since…

ATTORNEY-GENERAL: Well, you just told me that Labor - Fran, with respect, you just told me that Labor doesn't think that's a problem here so…

FRAN KELLY: Yeah. But you're the one with the Australian Solicitor's advice. I mean, we haven't seen it so we trust you the Attorney-General…

ATTORNEY-GENERAL: But unfortunately with this…

FRAN KELLY: Will we see it?

ATTORNEY-GENERAL: …but unfortunately with this issue, we don't have, it appears, the numbers on the floor of parliament to win a vote on this particular issue around medical transferees.

FRAN KELLY: Well with respect Attorney-General, when you're playing this out in public, have you gone to Labor to say: there's a problem with the drafting, will you address it?

ATTORNEY-GENERAL: Well, we'll summarise the problem today.

FRAN KELLY: Will you release the advice today?

ATTORNEY-GENERAL: Well they've - we do not waive privilege over full legal advice but we will provide a summary of the issue that we've identified so that it can be tested. But we do not waive legal privilege over advice because these matters may well end up in court if we are trying to find an auxiliary power to remove people and return them to Manus and Nauru.

FRAN KELLY: This Medevac Bill has been in the works since December when the Senate first passed it and sent it to the House. Why didn't you pick this up before now?

ATTORNEY-GENERAL: Well we said that this was a terrible law with a range of known consequences on our reading of it that we did not want to see come to fruition. We also warned there'd be unintended consequences. We certainly devoted our attention and our time to try to prevent this from becoming law.

FRAN KELLY: But did you send it off for a legal assessment?

ATTORNEY-GENERAL: Well it went through a whole range of assessments but this is something that wasn't picked up until the point that we have come to actually work out how we would logistically cope with what we think is a very bad law. And that's what we've been doing at the moment. Obviously Christmas Island and the very unfortunate $1.3 billion worth of expense that attaches to that is part of it but this is an issue of drafting that Labor has thrust upon the Australian people. It's our responsibility to try and make it work.

FRAN KELLY: Well not Labor. Again the Parliament, the Parliament voted on this. As I said before the Senate brought this in and passed it back in December. You are the Attorney-General, you do have a legal department. I would have thought that it would have been reviewed before now.

ATTORNEY-GENERAL: Well again, we warned that there'd be unintended consequences. We warned of a range of known consequences which we thought were very poor indeed and our warnings are coming to fruition. And in fact every day that we dig deeper into how would try and make this terrible law work we find further problems. So we realised yesterday that

FRAN KELLY: So will you fix it? Are you going to give Labor a briefing on this? And will you try to get this fixed today before Parliament rises?

ATTORNEY-GENERAL: Well what we'll first try and do is find some auxiliary power or additional power that is not the traditional power to return, so we'll obviously look for that. But it may well be that this requires legislative attention, but that is something that'll happen in due course and it may need to happen retrospectively.

FRAN KELLY: Well there's a hurry on though is there? Because of the retrospectivity? Why don't you just stop the politicking and get on with the drafting?

ATTORNEY-GENERAL: Well I think it's a bit rich frankly to say there's politicking here when we are doing our level best to make a terrible law work, when the law was drafted in haste, it was forced through the Parliament in a gag so that it couldn't be debated and we are trying to salvage that situation and make the best of it that we can. But it is not a situation of our making, and you can say that Parliament passed the law. This law was drafted, supported and pushed through the Parliament by the Greens, by Karen Phelps and other independents and by Labor against the opposition of the Liberal and National Party.

FRAN KELLY: You're listening to RN Breakfast, our guest is the Attorney-General Christian Porter. Christian Porter, the Government of Nauru has passed laws banning any transfer based on medical advice obtained by an off-shore teleconference or Skype. On the weekend you said those laws appear to conflict with Australia's laws, you were seeking legal advice on that. What have you found out?

ATTORNEY-GENERAL: Yeah well we're still working through that but there is always the fact that sovereign nations, as Nauru is, have the sovereign ability to make laws around their sovereign territory and there is a serious conflict of laws as lawyers would say here between the laws of our nation and the laws of the sovereign national of Nauru. And again this was an issue which was always likely to arise, which wasn't thought through when this bill was pushed through the Parliament with a gag and not allowing debate on it.

FRAN KELLY: Sure, but it's your job to deal with it. I mean we pay a lot of money to Nauru for asylum seekers. We can't just wash our hands of this.

ATTORNEY-GENERAL: No, but equally Fran our ability to control the laws of a sovereign nation are limited.

FRAN KELLY: On Christmas Island, which is now where the Government says: all these people will be sent. Christmas Island is not the mainland, it remains excised from our migration zone. By sending people there for treatment aren't you denying the explicit intentions of Parliament when passed the Medevac legislation last week? A subversion of democracy is what Kerryn Phelps calls it.

ATTORNEY-GENERAL: Well first of all the Phelps and Labor bill that was put through Parliament actually requires that the medical transferees are, on the request of two doctors, be placed in detention. That's what their bill requires.

FRAN KELLY: No, only - to be placed only those who have any kind of security issues attached to them.

ATTORNEY-GENERAL: No, no. that's not correct. The bill requires them to be placed in detention. Of course there will be people with serious security issues because the bill also very greatly and radically narrows the Minister's discretion. That excising of the Migration Act that you're talking about is not relevant to this set of circumstances.


ATTORNEY-GENERAL: That is relevant to potential unlawful maritime arrivals on Christmas Island and this situation is very, very different from that.

FRAN KELLY: On another issue your Cabinet colleague Michaelia Cash is directly at odds with the AFP, the Federal Police, over whether she provided a witness statement on the leaks from her office about the raids on the AWU. Who's telling the truth here, the Minister or the Police?

ATTORNEY-GENERAL: Well I mean I've seen the correspondence that the AFP sent to both Michaelia Cash and Michael Keenan. It thanked them for their provision of what, in that correspondence, the AFP described as a statement. It said that: the AFP would contact each of those individuals further if they required further information and the AFP didn't do that.

FRAN KELLY: Well you would have heard the evidence from the AFP and the DPP before Estimates this week though. We now know through that evidence that both Michaelia Cash and Michael Keenan refused to be interviewed by the Police. As the nation's first law officer are you disturbed by that?

ATTORNEY-GENERAL: Well I mean it's the right of every single individual Australian to provide information to Police in the way that they see fit. There was no compulsion to have an interview. Each of them provided written information, they received a letter from the AFP thanking them for doing so and saying that the AFP would contact them additionally if they required additional information. The AFP didn't contact them additionally and that's not an unusual set of circumstances.

FRAN KELLY: Is that the end of it? Are you relaxed about that as the first law officer that the DPP and the AFP go before Senate Estimates and say that basically yes there was a case to answer but there wasn't enough evidence, in part because the Ministers did not provide the statement - why?

ATTORNEY-GENERAL: Well first of all I think that's a mischaracterisation completely of what the DPP said. But in any event, in these circumstances the whole reason that there is a court case is because the Australian Workers Union are failing to provide documents which would otherwise show simply whether or not a payment of members' money to GetUp! was authorised. I mean this wouldn't even

FRAN KELLY: This is a court process and two ministers of the Crown refuse to be interviewed as part of it. Is that appropriate?

ATTORNEY-GENERAL: Well they did what the AFP asked of them which is they provided a statement. The AFP sent a letter to them thanking them each for that statement and said that they would be back in contact with them further if they required further information. If anything there is a little bit of a conflict between the written letter from the AFP and what was said in Estimates.

FRAN KELLY: And let me just ask you finally on an issue that's bubbling along lately, it's called Chumgate. It's about the Helloworld business and who might be affected by it. Can I just ask you a simple question? Have you ever received any free flights from Helloworld?


FRAN KELLY: Nothing. So you've and you've never- do you book your flights through the CEO of Helloworld?

ATTORNEY-GENERAL: Well my flights are booked by my office through whatever agency the Government contracts and uses. So I actually wouldn't know who that agency is to be honest, but I haven't had any personal connection with Helloworld.

FRAN KELLY: Christian Porter, thank you very much for joining us.