Michaelia Cash (WA, Liberal Party, Shadow Minister for Foreign Affairs) Share this | Link to this | Hansard source

In relation to the bill, we will hit a hard marker at 1 pm. In the time we have, I want to address the amendment we will be putting forward. The amendment addresses a known issue in the community safety detention order regime; this is something we were exploring last night during the brief inquiry we had into the bill. The issue is that, when you look at the bill and what will pass the Senate today because the coalition is supporting the bill, what the bill doesn't address is the threshold for the community safety order regime. The threshold for making such an order at this point in time is too high. This is evidenced by the fact that no applications are in place. More than that, the minister himself has said that the legal bar is so high that, in his view, no-one has come close to reaching the threshold. Given in particular what some of these people are alleged to have done, I think that is incredibly disappointing, coming from a government that should put community safety at the heart of its foundations and principles. But, in effect, Minister Burke has thrown his hands up and said, 'I give up.'

As we have always maintained, community safety is the first obligation of any government. That is why the coalition is very disappointed that this bill does not remedy obvious defects in the community safety detention order regime. I don't believe the government will be supporting our amendment today, but across successive Labor ministers for home affairs—and this is a real disappointment for the Australian people—the Albanese Labor government has not applied for a single preventative detention order in respect of the NZYQ cohort; that is a fact. We now know, and it was confirmed last night in the hearing on this bill, that that cohort currently stands at 354. So, in relation to those 354—particularly in relation to rapists, paedophiles, murderers, armed robbers and a contract killer—not a single order has been applied for not just by Minister Burke during his time as minister but by successive ministers in the first term of the Albanese government.

What was disappointing last night as we explored the bill and asked these questions as to why the bill—as I said, it will pass today because the coalition are lending their support to it. From the evidence heard in the committee last night—and not only then but across successive Senate committee hearings—it is now patently obvious that the government are unable or unwilling to approach the court to put serious criminals behind bars. We need to be very clear here: when we say 'the NZYQ cohort', many in the public don't know what we're talking about. The NZYQ cohort are people who should not be in Australia. They have no right to remain in Australia. They are currently, under this government, at large in the community. They are serious criminals—as I said, evidenced by the fact that the cohort includes rapists, a serial killer, a contract killer, paedophiles and an armed robber. They are serious criminals and they are unlawful citizens. In other words, they should not be here—a court, not the coalition, has found that—and they pose a serious risk to our communities.

The shadow ministers in the other place, both Mr Hastie and Mr Leeser, have tried to work with the government and tried to be constructive, saying to the government, 'If you are actually serious about improving community safety, if you really are worried about the fact that, at this point in time, as Minister Burke himself has said in relation to community safety detention order regimes, the legal threshold is too high, we can put forward an amendment.' As I said, that amendment will go before the Senate today. The effect of the amendment is twofold. The first is it would lower the threshold for preventative detention orders. The first set of changes set out in the amendment circulated by the coalition is about the threshold. These are straightforward, sensible and modest changes. The changes amend the Criminal Code in relation to the legal threshold for making a community safety detention order.

To make a preventive detention order these amendments would require the court only to be satisfied on the basis of admissible evidence in relation to the unacceptable risk and serious harm that the community may suffer. In other words, the amendment removes the statutory form of words to a higher degree of probability. That is actually the issue at this point in time. Parliament, the Senate in particular, has the right to change this. We change it, working with the government—they won't work with us—and we then enable the minister to start making those applications as he should have done.

The change gives greater latitude to the court to make appropriate orders on the basis of the admissible evidence. This statutory form of words is part of the legal threshold that Minister Burke has found so personally troublesome. Removing the phrase puts more power in the hands of courts, as is appropriate, and sets a more appropriate threshold to allow a preventive detention order to be made.

Items 2 to 4 are complemented by the changes. This would make amendments such that the court need only be satisfied that other, less restrictive measures may not be effective in protecting the community. The current drafting—Minister Burke has said it's not working; the minister has admitted that—requires the courts to be satisfied that such measures would not be effective in protecting the community. The bar is too high; we know that. For the 354 people, zero of these orders have been applied for by the government. It is too definitive and it requires too much work from the courts in terms of certainty.

Asking a court to determine in advance that alternatives would not be effective has apparently been part of the problem that has meant that Minister Burke has not even come close to applying for an order to protect the community. One might say, 'Have a go,' but that's not what this government does. They sit back and make every excuse in the world. Well, guess what? We're saying today that you have an opportunity to end the excuses—to actually make the change and ensure that there is a more appropriate threshold. Ultimately, this is about the safety of the Australian people. It will allow the minister to take confidence—because, clearly, he doesn't have any—that he can legitimately approach the court and ask for an order in the interests of the Australian community.

In the same vein as other amendments put forward by the coalition, these changes to the threshold for preventive detention are drafted with two layers of constitutional protection in mind—so don't raise that issue with us. The first is to ensure that the decision remains in the hands of the court, as we know it has to. This avoids known issues around chapter 3 and detention by the executive, which, as we know, were identified in a line of cases, including in the NZYQ case itself. The second is that, based on the procedure for applying for such an order, it is clear that any potential constitutional risk will crystallise only where the court itself determines to issue a community safety detention order.

The other set of amendments on sheet 3429 address a known issue with mandatory sentencing in section 76DA of the Migration Act. This was drafted by the government but moved by the opposition and passed on a bipartisan basis. These mandatory sentencing arrangements were put in place to, again, ensure that, if the murderers, the rapists, the paedophiles, the armed robbers and the contract killer were not able to adhere to their visa conditions, they would be behind bars; they are criminals.

Surprisingly, despite the clear intention of the legislature, we have now seen numerous instances where the court imposed a one-year sentence of imprisonment—as they have to—and then suspended it wholly. The person does not see a day behind bars. That is an absolute disgrace. They go straight back into the community even though they've been sentenced to jail because they are a criminal. The changes in items 5 and 6 on sheet 3429 would close that loophole. It's pretty simple.

I hope the media are listening, because, seriously, you need to be asking questions of Mr Burke this afternoon about why he can't support these very simple amendments. All our changes do is say that mandatory minimum jail time means mandatory minimum jail time. This is not a change to the policy position of the parties of government. It is, again, a modest change that simply clarifies the drafting of the law to give better effect to the shared intention of both the Labor Party and the coalition. It should not be controversial. None of these amendments should be controversial. Let me be very clear: if the government aren't going to put the Australian people and community safety front and centre, I can tell you right now that the coalition will. That's the point of the amendments.