MINISTER TONY BURKE - TRANSCRIPT - ABC 7.30 WITH SARAH FERGUSON - 1 AUGUST 2024

E&OE TRANSCRIPT

ABC 7.30 WITH SARAH FERGUSON

THURSDAY, 1 AUGUST 2024

SUBJECTS: Immigration, High Court, Administrative Appeals Tribunal

SARAH FERGUSON: Tony Burke, welcome to the program

TONY BURKE, MINISTER FOR HOME AFFAIRS, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS, MINISTER FOR CYBER SECURITY AND MINISTER FOR THE ARTS:  Good evening.

FERGUSON: Now, you've taken over the immigration portfolio amongst that long list, obviously a source of relentless pain for the Albanese Government. What were the first questions you asked the department when you took over?

BURKE: I've been in fairly constant briefings ever since that moment. I did start with the immigration issues because I had dealt with them when I was previously Immigration Minister. That was the first port of call wanting to get an understanding as to what had changed and there will always be new attempts trying to break the systems that you've got in place - these things are always evolving.

Getting myself up to date with what was happening out of Indonesia and then within a few hours of that, finding myself on a plane going to Indonesia to meet with a relevant counterpart, Co-ordinating Minister Hadi.

FERGUSON: Now, I appreciate you've only had a few days, and that included meetings in Indonesia, but just on immigration. What questions were you asking the department about that very difficult cohort that's caused so much trouble to the government?

BURKE: I've gone straight to wanting to get an understanding of what's going to be required for us to be taking action in the court because these were individuals who the Government had already decided we did not want in the community.

The High Court compelled different forms of action there and so, my starting point has been to get across what levels of evidence we need to get to and making sure that as soon as we have those cases ready to go, that we take action using the laws that we've passed.

FERGUSON: Now, there are, I think, a couple of cases that are pending at the moment. One of the problems with that initial cohort in the case last November is that the government was caught flat-footed. What will you do differently if the government loses those cases? There could be more releases. Will you be better prepared this time?

BURKE: I've spent a good part of today actually - now that I'm back from Indonesia - going through some of the cases that are happening. This is the most litigated area of government, so there will always be a series of cases. I'm not pretending that I've been briefed on all of them, but some of the ones that are coming up sooner and starting to work through what sort of regulatory response might be required if we're not successful in those cases. But obviously, we'll be fighting them vigorously, and the best outcome will be if we're successful in those cases.

FERGUSON: Now, in the case of the cohort whose release was forced by the decision in November. It's about 150 people. Why can't the government successfully control the movements of 150 people?

BURKE: Well, there are a couple of issues there. Some of the aspects of those laws that we put in place are being contested. So, specifically, there's some hearings that will begin next week that go to issues of curfews and the ankle monitors, but there are a whole series of other controls that are not being contested in terms of the other forms of monitoring and reporting, which are part of it.

There will be legal contests there. Let's start with the Government's preference, and the government's preference is for these particular individuals to be out of the community altogether. That was my first priority, to work through how we're going with that.

FERGUSON: Well, I mean, clearly from what we've seen so far, the numbers of crimes that have been committed by those people, it's not going well. I think it's a quarter of those detainees have been charged with a crime post release, some of them serious. Now, we know that the Minister has powers of preventative detention, and I say again, I understand this is only your first week. The Minister had applied - the outgoing Minister had applied to use those powers. Why hasn't he been - why wasn't he successful so far in being able to use powers of preventative detention for those acute cases?

BURKE: Sorry, I should have specified in your first question when you asked, ‘what was my first priority?’ It was actually these cases. I didn't use the term preventative detention, but that's what I was referring to, where effectively the threshold that the legislation was set to, which was based on another High Court case that had dealt with preventative detention with respect to terrorism, has a relatively high threshold.  So, building the evidence base to make sure that the cases are successful has been the priority of the department. I started with that, the moment that we have reached those thresholds, I don't intend to wait a day before the cases are put to the courts. But it's the courts now that make the decisions about detention, not the Minister.

FERGUSON: Do you have concerns with the courts? Because I think just this week a Victorian judge released one of the cohort on bail. This was someone who was charged with a breach of his curfew. He said the idea of a mandatory prison sentence for breaching curfew was too harsh, and he said that the community would agree with him. Do you have confidence that the courts see this the way you do?

BURKE: Well, I guess the best way I can answer that is to explain how I see it, and I'll let the courts speak for themselves. But from my perspective, we do expect a higher standard from people who are on visas. If you're on a visa, you are a guest in a country. The concept that we would treat people on visas identically to citizens is not my view. If you sort of think about it in terms of a family, if one of your kids brings home someone and they start breaking the furniture, you won't invite them back. But if your own kid does it, you've got to manage it in-house. There will be different standards for people who are on visas to citizens, that's I think, completely appropriate.

FERGUSON: So, what does this say about community safety right now? Because in the end, this is what this boils down to. If you've got a series of individuals who have been released, who you think and who the previous Minister thought should be in preventative detention, that sounds like a dangerous situation for the community.

BURKE: Certainly, my priority here is community safety, and I am very anxious to be able to use the laws that we currently have to their full extent. But it would be irresponsible of a Minister to put forward a case that was doomed to fail because you would end up in a weaker situation as a result of doing that. That's why I started where I did in wanting to make sure we get the evidence, we get the case ready to go, and I want these cases to be ready to start. The threshold, though, in the legislation, because it was set against other decisions that had come from the High Court, is a high threshold now.

FERGUSON: Now, the Administrative Appeals Tribunal has the power to overturn decisions on whether non-citizens who commit crimes should be deported. There were a number of questions raised about Administrative Appeals Tribunal decisions over the past - over the previous months. Do you have faith in the tribunal as it stands now?

BURKE: There were certainly two decisions that I think were made yesterday, when I got off the plane from Indonesia - at about 12:20 this morning it would have been, I saw the reports of two of those cases. I had my secretary of the department with me. I asked immediately that I want the brief to be prepared for those individuals to be brought to me so that I can have a look at it and review it. Obviously, I can't prejudge it but at the same time, long before I knew about those cases, I had made my priority of community safety very clear.

FERGUSON: But does that mean you have concerns about the culture or the thinking inside the Administrative Appeals Tribunal?

BURKE: Certainly, the only reason any of these cases have been appealed to the tribunal is because my department, had already made a decision to cancel the visas. The department had already made those decisions, working from the same advice, the same directive. The AAT is there for a reason, but there is also a further process after the AAT that is there for a reason, and that is the capacity of a Minister to call in a decision and to be able to have a look at it effectively on national interest grounds. So, that's what I did immediately when I saw those most recent two.

FERGUSON: There's also a set of guidelines that were created by the previous Minister to look at people who - people who had been in Australia for a long time, who had committed crimes. Do you think those guidelines, on considering people's ties to Australia, need to be looked at and rewritten?

BURKE: I've heard that claim from the Opposition, but what the Opposition have always missed when they refer to the guidelines is the fact that the only reason these appeals are before the Administrative Appeals Tribunal is because the department has used the same guidelines and, on the basis of those guidelines, has cancelled the visa.

The guidelines, when interpreted by the department are resulting in visa cancellations, in most of those decisions would be upheld by the AAT. When they're not, then the capacity is there for a Minister to be able to look at them and that's exactly what I did. I won't always be giving directions to the secretary of my department 12:20 in the morning. But we both got off a plane, as soon as I saw it, I knew I wanted to act and I've asked for that brief to be prepared.

FERGUSON: When I introduced you, I describe the size of the portfolio that you're now responsible for. Given how complex this immigration portfolio is and everything that you've just been talking about, isn't it a portfolio that requires a dedicated Minister who is only focused on that?

BURKE: I'm really glad you put that to me because one of the things that's been missed in some of the commentary is effectively across the portfolio, we've gone from a team of two to a team of five. I'm the Cabinet Minister of that, but I've got two assistant Ministers and two further envoys dealing with areas of the portfolio as well.

On the day I was sworn in, I met with the Assistant Ministers, and we began the process of delegation for the parts of executive authority that they have. I'll be dealing and meeting personally with one of the envoys tomorrow and the following next week.

There is a team of five working its way through the portfolio and when you structure it that way, I'm very confident that. Yes, it's a big job for all of us and with a very deep sense of responsibility, but we approach that with a very deep resolve as well.

FERGUSON: Tony Burke, thank you very much indeed for coming in at the end of the week and after the trip to Indonesia. Thank you.​

BURKE: Great to be back.

ENDS