Interview with Fran Kelly, ABC Radio National – 8 June 2012

Topics: People Smuggling

FRAN KELLY: Well, Jason Clare is the Minister for Home Affairs and Justice.

He joins us from Perth.

Now, Minister, welcome again to Breakfast.

JASON CLARE: Good morning, Fran.

FRAN KELLY: The AFP tells us they’ve been investigating Captain Emad for two years.

They knew he was trying to leave the country. The red flag went up, yet he was still allowed to leave the country. Why was that?

JASON CLARE: Well, unfortunately, because, at the moment, police don’t have sufficient evidence to arrest him. It’s frustrating. No-one wants to arrest criminals more than the police do, but there’s a burden of proof that we need to meet.

If we’re going to put someone before a court we need sufficient evidence to prove beyond reasonable doubt that that person is guilty. And there is a difference between the information you need in compiling a television program or, for that matter, information you need in a civil court proceeding to a criminal court proceedings.

We need to convince a judge or convince a jury beyond reasonable doubt. And despite the work the police have done over two years – the conducting of a search warrant and a number of interviews – they don’t have sufficient evidence to arrest this individual at the moment.

FRAN KELLY: What about sufficient evidence to detain somebody for questioning? I mean I wonder did you – were you aware – did the AFP notify you that Captain Emad was leaving the country and their decision to let him leave?

JASON CLARE: I was notified of that on Wednesday. Police made the decision that they didn’t have sufficient evidence to arrest and, therefore, didn’t have sufficient evidence to stop. They arrest people at airports every day, as you know, but they do need enough evidence in order to stop somebody at an airport. And the grounds on which to stop someone are that they have sufficient evidence to arrest them. They just don’t have that at the moment, unfortunately.

FRAN KELLY: But I think a lot of people listening would want to know why he wasn’t at least detained for questioning. You can question someone without charging them, can’t you, or not?

JASON CLARE: Well, again, I’ve got to be – I know I was cautious on Tuesday. I’ve got to be cautious here again. But he was stopped at the airport and a number of things did occur. But in order to stop somebody from leaving the country you need to have sufficient evidence to arrest them. Police and operational people on the ground at the airport on Tuesday night made the decision they didn’t have that evidence.

FRAN KELLY: He was stopped but he wasn’t questioned. Is that what you’re telling us?

JASON CLARE: Well, he was stopped at the airport and…

FRAN KELLY: [Interrupts]. By whom?

JASON CLARE: By police, by Customs and Border Protection officials. What happens is that we’ve got a movement alert list. And he’s been on that movement alert list, like a number of people across the country, for some time.

That triggered the alert, and Customs and Border Protection officials, as well as the federal police, would have made a decision on Tuesday night about whether they had sufficient evidence to arrest him and stop him getting on the plane. It’s a decision that people in uniform make, not politicians. I was advised the following day.

FRAN KELLY: Are you – would you have been – preferred to have been notified before this happened rather than the following day? And are you easy with the decision the police made?

JASON CLARE: Well, the short answer to the first question, Fran, is no. It’s not the job of politicians to become policemen. I’m not a police officer. It’s a decision that law enforcement officials need to make, and they need to make that decision based on the law. It’s the nature of things here. You arrest people based on evidence. It’s the same with visas. You cancel visas based on evidence. If you don’t have sufficient evidence you can’t make the arrest or you can’t take somebody to court because you risk something even worse.

If you take someone to court and you don’t have sufficient evidence and it gets thrown out, then you can’t put that person in the court again for the same offence. You’ve got the problem of double jeopardy. You cancel a visa and you don’t have proper grounds to do it, we’ve got a repeat of the fiasco that happened with Haneef under the Howard Government.

FRAN KELLY: Let’s go to the idea of cancelling of visas because a spokesman for the Immigration Minister says Captain Emad’s visa is under review but remains valid. The Opposition says it should have been cancelled when the allegations came to light on Four Corners. Visas do get cancelled, so why wasn’t that option pursued? What – wasn’t – what was needed that you didn’t have in order to make the decision to cancel the visa?

JASON CLARE: Well, it is being pursued. I think I made the point on the program on Tuesday that it’s open to the Department of Immigration to review visas and make recommendations to have them revoked.

The Minister for Immigration, on Tuesday, ordered his department to conduct a review of this visa. That work is going – we’re waiting for the advice from the Department of Immigration, but there are…

FRAN KELLY: [Interrupts]. Why is that taking so long?

JASON CLARE: Well, because there’s a thing called the Migration Act, and there are standards in place that determine whether a visa can be revoked or not. You need evidence to…

FRAN KELLY: [Interrupts]. And what are those standards? What are the key elements that would make – you know, that make a basis, form a basis for cancellation of a visa?

JASON CLARE: There’s a couple. One includes a character test. The other one is whether the person has provided incorrect information at the time that they were provided the visa.

It’s the obligation now on the department, as ordered by the Government, to go back and review the information that that person provided at the time that they arrived in Australia to determine whether that person provided incorrect information, whether there’s sufficient evidence to question whether he is of a proper character to have the visa. And if that evidence exists, put that before the Government for the visa to be revoked.

FRAN KELLY: In a sense – and I know it’s not proof – but the allegations on Four Corners the other night have been presented before the Government, and they would suggest that this person – if they’re true – has provided incorrect information. I mean, you know, if the story is right he was a people smuggler, he was driving that boat, he was not asylum seeker fleeing persecution. In fact, he owns and runs commercial enterprises in Malaysia. Doesn’t sound like he’s entitled to a refugee status.

JASON CLARE: They’re all the sort of things that have got to be tested. Police have worked with Four Corners on this story. I wasn’t able to give you that information on Tuesday, but since then the commissioner has made the point – he made it yesterday – that we’ve been investigating this individual for two years.

We interviewed the people that were on the boat. They refused to give us information that would be the evidence required to arrest this person. So police have been working this issue now for more than two years.

FRAN KELLY: Is it a – is there ministerial discretion in the granting of a visa and, therefore, the visa is sort of at the pleasure of the minister? Can’t it be revoked?

JASON CLARE: Well, I’m not the Minister for Immigration, so I’m not an expert on the Migration Act. But what I do know is that if you don’t get it right, then you end up with the mistakes that the Howard Government made with the Haneef matter, where they cancelled the visa. In that case it was a 457 visa. And it was then overturned by the court.

It’s important that we follow due process here, that you act on the advice of the department and that they’ve got sufficient evidence to make the case that a visa be revoked, otherwise it can be appealed in the court or in the AAT.

FRAN KELLY: The commissioner says there are ongoing AFP investigations into twelve suspected people smuggling rackets in the country, in Australia. Are those suspects free to leave the country now as well?

JASON CLARE: Well, they – we’ve all got the same rights and privileges. If you’re an Australian citizen or if you’ve got a visa or a passport – documentation to leave the country – then you’re subject to the same laws as you or I.

FRAN KELLY: Well, I think, you know, you can understand people’s sort of frustration at watching this. Do you think – and the Opposition’s offering to support the Government if it wants to change the rules to make it easier for a government to revoke a visa. Would you like to see the law changed?

JASON CLARE: Well, again, that’s a – I haven’t seen the details of what the Opposition’s proposed. It’s a matter for them to put that to the Government. But the commissioner was asked the question yesterday in his press conference, whether he thought that police needed more power to stop people getting on a plane or whether there needed to be a change in law. He – his response was he thought there’s no gap in the law.

I think I’ve made it clear through other things we’ve spoken about before, Fran, that if police come to me and say they think they need more powers, then I’ll give them to them.


JASON CLARE: An example of that was the thing we talked about a couple of weeks ago with organised crime on the waterfront. So if police tell me they need more powers I’ll take it to Cabinet and I’ll take it to the Parliament. But that’s not the case here.

FRAN KELLY: Alright, Minister, thank you very much for joining us again on Breakfast.

JASON CLARE: Thanks, Fran.

FRAN KELLY: Jason Clare is the Minister for Home Affairs and Justice, joining us from Perth this morning.

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