Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

Before I commence my contribution, let me say to Senator Sheldon: that was a beautiful contribution, and I suspect the family will be extraordinarily grateful. I don't think you could have done better.

During question time, quite often when one fails to control oneself, as my good friend Senator McGrath does far more often than I do, the President will exhort us to perhaps save our interjections for a contribution later in the day. I listened carefully to the President, and I'm taking this opportunity to follow her exhortation. So, President, if you're listening there somewhere, I do listen to you and deeply respect your guidance in these matters.

My colleague Senator O'Sullivan asked a question of the Leader of the Government in the Senate, Senator Wong, earlier today, and on that occasion I couldn't help interjecting. I will just lay the foundation for this. It was in relation to the High Court's recent decision on those in detention. Senator Wong made this comment:

Of course, the Leader of the Opposition was the Minister for Home Affairs at that time.

Actually, I'll go back a bit earlier. She said:

… no action was taken by those opposite to remove them from Australia.

That was the comment she made that's relevant here:

… no action was taken by those opposite to remove them from Australia.

We're talking about the people who were in detention. I interjected, 'Why couldn't they be?' Senator Wong responded:

You tell me. Why couldn't they be? I'll take that intervention. Maybe you should ask Mr Dutton that—

et cetera. Senator Wong does this very effectively from time to time when someone makes an interjection. She will challenge them to tell the chamber why it is not the case that something is the case. I obviously, respecting the President as I do, take that as a rhetorical invitation to get up and advise the chamber, much like a rhetorical question—that is, Senator Wong didn't really expect me to stand up and explain why my good friend the Leader of the Opposition was unable to remove the individual who was the subject of a High Court case from Australia at that point in time. But I think it is important that the record be corrected, because the plaintiff in the relevant High Court case, NZYQ, could not be removed from Australia.

First I turn to the chronology of documents that was presented during the hearing in the High Court. This was lodged in the Sydney registry, and this chronology is very important. The plaintiff was born in Myanmar sometime between 1995 and 1997. On 17 September 2012 the plaintiff arrived in Australia by boat. On 6 July 2013 the minister made a residence determination in respect of the plaintiff. On 18 September 2014 the plaintiff was granted a bridging visa E (class WE). On 9 January 2015—this is the first date of great import—the plaintiff was arrested and charged with one count of sexual intercourse with a person aged between 10 and 14. On 16 January, seven days later, the plaintiff's bridging visa was cancelled by the government on the basis that the plaintiff had been charged with a sexual offence. The previous coalition government rightly cancelled the bridging visa. On 28 January, just 12 days later, the plaintiff pleaded guilty to the offence with which he was charged on 9 January. There were only three weeks between the commission of the offence and when the plaintiff pleaded guilty. On 31 August 2016 the plaintiff was sentenced to five years imprisonment with a non-parole period of three years and four months. On 8 May 2018 the plaintiff was released on parole. By my arithmetic, the plaintiff was released at the end on that non-parole period—or would have been released, subject to the plaintiff not having a visa. On 30 July 2020 the plaintiff's application for the protection visa was refused. On 4 March 2022, the AAT affirmed the delegate's decision to refuse to grant the plaintiff a protection visa.

This was going through the court system all this time. Whoever the minister was at the relevant time through all of this was unable to remove the plaintiff from this country during all of this time, and Senator Wong should know that, and now this chamber knows that. On 9 May 2022, under the current government, the plaintiff wrote to the department and requested that he be removed from Australia to another country. On 20 May 2022 the plaintiff was interviewed. On 22 August 2022 the Federal Court dismissed the plaintiff's application for judicial review of the tribunal's decision. There was no opportunity under the previous government for this plaintiff to be removed from the country—absolutely none. On 7 February 2023 the minister personally decided that he did not wish to consider intervening under section 195A or section 197AB of the act, grant a visa or make a residence determination in respect of the plaintiff.

No doubt that was then the trigger for the High Court case—nothing that occurred under the previous government. The relevant facts occurred under the current government, not the previous government. The red flag should have been put up on 7 February 2023 for the current government that they needed to take action. This is supported in the appellants submissions in the High Court Case. I actually read the submissions in the High Court Case, paragraph 5: 'It is in that context, as detailed in the special case, that the parties agreed,' so both the government and the plaintiff agreed:

that, as at 20 May 2023, there was no real prospect or likelihood of the Plaintiff being removed from Australia in the reasonably foreseeable future …

Why? If you go to the transcript of the hearing on 8 May, which I also have: he is not a citizen of Myanmar; he's unable to obtain citizenship of Myanmar; he's not a citizen of any other country; he has no travel document; he is stateless. Paragraph 165 says, 'The department has never successfully removed a person who has been convicted of an offence involving sexual offending against a child to a country other than a country which recognises the person as a citizen.' The department did not have one example of having successfully removed a person who has been convicted of a sexual offence against a child from this country to a country except a country of which that person is a citizen.

The plaintiff in this case was not a citizen of any country. So it was impossible to remove this person. That was the whole point of this case. It was totally disingenuous of the Leader of the Government in the Senate to suggest that during the tenure of the coalition government it had in some way failed to remove this person. It was impossible to remove this person. That's why we're now in the situation we're in. It was extraordinary to read the answers in the House of Representatives during question time today when Minister Giles said:

I said yesterday that 80 such people were required to be released; a further person was released yesterday, and I have imposed similarly strict visa conditions on that person.

But when the Leader of the Government in the Senate was asked earlier today by my colleague Senator O'Sullivan what the consequences of a breach of visa conditions would be, she did not respond to that question. Why? Because a breach of visa conditions, in all likelihood, would not lead to that person being put back in detention. That's the whole point. The people of Australia are not protected against the murderers and the sex offenders who have been released onto the streets of Australia. It is an absolute disgrace that the government was not prepared for this decision and was unable to introduce legislation into this place this week for consideration.