03 September 2019


SUBJECTS: Biloela family, Scott Morrison’s faith, ministerial discretion, Peter Dutton losing control of the Department of Home Affairs.
HAMISH MACDONALD, HOST: Kristina Keneally is the Shadow Home Affairs Minister. Good morning to you.
MACDONALD: Let's start with this question of faith. Why drag Scott Morrison's faith into this?
KENEALLY: Well the Prime Minister himself put his faith on public display as part of the election campaign, you know, and Hamish as a Christian myself, as a Catholic, as a person who has long sought to explain really the values that I hold dear in the context of my faith – and I do think faith as well in the public square – you know, I don't like though to bring religion into political debate unnecessarily, but the Prime Minister introduced it in the election campaign.
MACDONALD: But why is it necessary now in context of this particular debate?
KENEALLY: Because the Prime Minister, having introduced it into election campaign, having gone to point to it as a part of who he is and the values he holds.
MACDONALD: He went to church at Easter which Bill Shorten also did.
KENEALLY: In this particular debate though, what we have is a question not just of law, but a question of values, a question of compassion, a question of discretion. There is discretion in the Migration Act and it goes to a question of judgment and how you exercise that judgment. So it's not a straightforward question. If it was, we would just have a computer algorithm that made this determination. So what I'm calling on and asking the Prime Minister to do is to reflect upon the values he put before the Australian people, that he said he holds dear, and to explain his position within that context.
MACDONALD: Some of your colleagues have expressed discomfort with this approach. Chris Hayes and Helen Polley, for example, don't believe that PM's faith or anyone's for that matter has anything to do with it. Are you listening to them?
KENEALLY: Look I'm mindful that people are never completely comfortable and I understand that with the mixture of religion and politics and you know, we do have a separation of church and state. But when a Prime Minister, you know, invokes the book of Jeremiah and his inaugural speech, when he invites the media into film him at church...
MACDONALD: At Easter which politicians do.
KENEALLY: I don't think I've ever invited the media in at Easter, which is the holiest day in the Christian calendar.
MACDONALD: Maybe if you were running for Prime Minister you might.
KENEALLY: I don't know that I would Hamish. I mean, yes, have the media come and seen me at church, they often went to mass on Sunday because they knew I would be there. But the Prime Minister has explicitly said to the Australian people, ""this is part of who I am, this is what I believe"" and so all I'm doing is saying in a context which is not a black letter law one, that does go to values, that does go to ideals, that does go to judgment, you know, I'm calling upon him to reflect upon the parable of the Good Samaritan which invited us as Christians to take care of the stranger in our land.
MACDONALD: If we did look at it from the perspective of someone of faith, though, I mean the Prime Minister has talked about remembering the death and the terrible images, which presumably he saw in briefings. I mean, wouldn't that shape any person of faith, I mean, any human's approach to making these sorts of decisions and that would be context, that would be important content.
KENEALLY: Absolutely. It is important context which is why I, as a Christian and a politician, support Operation Sovereign Borders. I am sometimes criticised for doing that. But I do not want and would not allow the people smugglers to prey upon vulnerable people and to risk their lives in perilous journeys at sea. That's not what's at stake here, though. What is at stake here is a family that because of delays in processing, poor processing times within the Department of Home Affairs, has been allowed to spend a considerable time in Australia. They have become part of the community, they have found work, they are paying taxes, they are volunteering, and that community – Biloela in Queensland – wants them to stay. And this Hamish is why our Migration Act has discretion because it recognises not every decision can be boiled down to a simple, you know, facts-in-facts-out equation.
MACDONALD: There were something like 1500 others Sri Lankans found not to be refugees sent back. I mean, there would have been almost certainly similar heartbreaking tales of families amongst those. Why not stand up for them? Where was Labor in those cases?
KENEALLY: Look Hamish it's a valid question. What we have here though is a particular circumstance and I...
MACDONALD: That we know about. We might have come to know about any one of those 1500.
KENEALLY: I think that goes to another question of the determination of this Government to keep information from the Australian people. They hold all the information and, quite frankly, the Prime Minister's cynical move yesterday to suddenly release information about ""on-water matters"" when he steadfastly refused to talk about them for years, because it politically suited them to do so. It's manipulative and it's not forthcoming.
MACDONALD: You're talking about the front page of The Australian newspaper yesterday.
KENEALLY: Absolutely. So my point is this, you are right to raise the fact that there may have been other cases that we're not aware of. And that's because the Government has made decisions about what information the Australian people are to be trusted with and what information they cannot have access to.
MACDONALD: But can we be clear about what I suppose the template is now. If you are someone that arrives here by boat and you're found not to be a refugee, but you have a child in Australia after getting here through whatever means, should you be allowed to stay? Is that Labor's policy?
KENEALLY: No of course not. And let's be fundamentally clear here, Hamish, all I am asking is that the Government exercise what the law allows them to do, which is discretion in certain circumstances.
MACDONALD: But that is the circumstance here that they've had a child after arriving.
KENEALLY: Well I think it's broader than that. This is an importation, quite frankly, of an American debate about so called ""anchor babies"" and the law is very different in the United States where citizenship is accorded to anybody born on American soil. That is not the law in Australia so it's an importation of that debate. No. The issue here, I would say, is that the Biloela community, Australians, have embraced this family, want them to be part of their community, have integrated them into the fabric of their community. It's not simply the act of having a child.
MACDONALD: But that's not what the court is considering tomorrow. It's considering this child.
KENEALLY: Well this child has not had their asylum claim assessed by the court and that's what's being considered.
MACDONALD: So ultimately, I mean, it's not an irrelevant question to ask about whether if you come here, even if you’re found not to be a refugee, but you have a child here, should you be allowed to stay?
KENEALLY: I don't see anyone making that argument, Hamish, what the argument is legally before the court is whether or not this child, this two year old child, who by the way has been in detention in Australia for the past year, that Peter has been parading around the country saying that he got all the children out of detention. He did not. Kopika and Tharunicaa have been in detention and Tharunicaa has had serious health impacts as a result of that detention. Nonetheless, the issue before the court is whether or not her claim for asylum has been assessed.
MACDONALD: So given you're saying this is an instance where discretionary power should be used. If you were the Home Affairs Minister, would you be prepared to let others who have been found not to be refugees, but who came here by boat, to stay in Australia?
KENEALLY: Hamish each case of discretion has to be exercised on its merits and in its circumstances. It's not possible. That's the very nature of discretion – that it's not possible to have a blanket application.
MACDONALD: But you would be open to it?
KENEALLY: In this case, I would be, absolutely. As Peter Dutton has been, as Peter Dutton has used his discretion, not just to let two au pairs come into the country temporarily rather than be deported, but he has actually allowed a minor who was being held in regional processing on Nauru, to come to Australia and to settle with his family here in Australia. Now that is a case where the Minister for Home Affairs, Peter Dutton, has exercised discretion to allow a boat arrival, who was being held on Nauru, to come to Australia and settle here. Now that didn't restart the boats. Medevac has not restarted the boats. Allowing this family to stay would not restart the boats. The boats are an ever present threat because people smugglers will always find ways to prey upon vulnerable people. What stops the boats is working in source countries, aerial and surveillance patrols, the work that we do to turn them back, offshore processing is part of that; it should not become cruel, indefinite detention. And quite frankly, if you want to talk about controlling our borders, 81,000 people have arrived at our airports seeking asylum; that far dwarfs the number who've come by boat. There's nothing illegal about seeking asylum but 90 per cent of them have found not to be refugees and there is a rort going on within our visa system as they are being trafficked here to work on bridging visas in exploitative conditions. Peter Dutton has failed to notice that people smugglers have largely shifted their business model from boats to planes.
MACDONALD: It has been said that because of the notoriety of this family's case, it's made it harder for the Minister to use his discretionary powers. Do you accept by turning it into such a political issue, which it clearly now is, that it does make it harder for him to grant that concession?
KENEALLY: I don't accept that at all. In fact, if anything the Minister could have dealt with this months ago. I started raising this issue with Minister Coleman, who is actually the relevant minister here, the Minister for Immigration and Citizenship, I started raising with it with him not long after I took on this shadow portfolio responsibility. Labor had committed before the election to review the case had we won Government. I have made no less than eight representations to the Minister; had deafening silence from him. This case had media attention before the election; the Government could have dealt with it at any point and use their discretion at any point in the past year well aware that the Biloela community, which is in an LNP seat, wanted this family to stay, they could have dealt with it quite quietly and quickly.
MACDONALD: There does seem to be some sounds at least coming from the Government that would suggest that if this family is deported, that they go back to Sri Lanka and then apply to come to Australia, that might be a possible pathway back to Biloela. Would you accept that as a solution? A compromise here?
KENEALLY: Well I don't know if the Prime Minister in offering that opportunity was actually offering it as a promise or just a way to get out of a political debate where he felt cornered. But let's understand that they wouldn't be able to make a claim for protection unless the Minister actually explicitly granted them an exemption. They could potentially apply for another type of visa but that has to be assessed by this Government.
MACDONALD: But would that satisfy you?
KENEALLY: Well, what would satisfy me is that we were never in this circumstance in the first place. If you asked me, what would have made me pleased about the outcome is that if Minister Coleman had just quietly and carefully dealt with this; not dissimilar to the way that Minister Dutton dealt with that young man from Nauru. He did it quietly, without a lot of fanfare. It's within the capacity of this Government to make discretionary decisions about people who've arrived by boat before. They could have done that in this circumstance.
MACDONALD: But doesn't the fact that you won't engage with that as an option, doesn't the fact that is an option...
KENEALLY: I'm sorry, I haven't, I'm not sure how you take from that answer that I'm not engaging with it is an option.
MACDONALD: Well the question was would it satisfy you?
KENEALLY: Well you ask a question about what would satisfy me. The thing is we are where we are now; I make the point we don't need to be here. That doesn't, that didn't, need to be the solution. Now, if that is a solution that Government is offering, that would be a way through. Sure. I'm not clear that that is a solution the Government is offering though.
MACDONALD: If that is what happens, would that demonstrate that this has all been a very expensive political game?
KENEALLY: Well let's understand where the expense has come in. And that's a Government that, one, has lost control of its processing times. And it's not just when it's assessing asylum claims. Spouse visas, which are relatively straightforward are now taking over two years. Citizenship applications, which I myself, by the way, have completed – it took only a few weeks because citizenship should be at the end of a process where you've gone to permanent residency – that's now taking over two years. We have asylum claims that are taking two to four years to assess and those are the people who come by airplane with papers. The fact is we have a migration system which is straining, at straining point, because the Government having created the Department of Home Affairs has lost a focus on immigration and processing. And that undermines public confidence, it undermines the capacity of business to bring in skilled workers and it certainly is putting great pressure on families who are trying to get parents or spouses to be able to join them in Australia. We used to do these things quite quickly and efficiently and we are simply not any longer.
MACDONALD: Kristina Keneally thank you.
KENEALLY: Thank you.