TV INTERVIEW SKY NEWS SUNDAY EDITION

SUBJECTS: Migration bills, Immigration detention search powers, Ayelet Shaked visa.

ANDREW CLENNELL: Joining me live is the Home Affairs and Immigration Minister, Tony Burke. Tony Burke, thanks for joining me. Let me ask about these bills –

TONY BURKE: Good to be able to chat.

ANDREW CLENNELL: Let me ask about these bills that you've got through, some pretty harsh measures. It's a migration detainees’ legislation. You now have the right to pay a third country to take someone who has come here to seek refugee status and who can't be sent home. So which third countries do you have in mind, and do these include Nauru and PNG?

TONY BURKE: The third country arrangements that have been in place for a long time have been with countries like the United States and New Zealand. And one of the things that really shocked me when I came back to the portfolio was we would have people who would be given an outcome to go to New Zealand and would refuse. Would say, 'Nah, I'm staying in Australia', and the lawyers would turn up and the thing would go on and on. And I just think that's ridiculous.

You know, the starting point for any immigration system for any country in the world should be that if you're in a country, you should either have a visa or you should be a citizen, and if you don't have a visa or you don't have a right to apply for a visa, then, in those circumstances, you should leave.

Now most people leave voluntarily. We have large numbers of people leave every week. There are some people every week who we have to make leave, but this is a further tool to be able to make sure that we can have a system that is working properly; every country has got a right to have a system ‑‑

ANDREW CLENNELL: How many people are you looking to deport?

TONY BURKE: Well, as I say, we already deport people every week, we already do that. This gives us an extra tool to be able to do that, and I think it's completely reasonable.

ANDREW CLENNELL: Are you seeking to ‑ this cohort ‑

TONY BURKE: If someone's in a situation where ‑‑

ANDREW CLENNELL: The NZYQ cohort, is that who you're seeking to get a deal with countries like US and New Zealand to remove?

TONY BURKE: For anyone who doesn't have a right to a visa, they are, that cohort's part of that; they're the most difficult people to find another country for. You can understand why other countries are going to be resistant to them.

But, you know, my starting point is simply that people should be in a situation, if they're in Australia, where they should either be a citizen or a visa or someone with a right to apply for a visa, and you know, we have people who are not in those situations, most of them leave voluntarily, some don't. At the moment, up until this point we've only been able to use a third country if it was done on a completely voluntary basis, and this gives us an extra tool there.

ANDREW CLENNELL: So you'd have, presumably ‑‑

TONY BURKE: It's not something where I'm about to make ‑ I'm not about to make some big grand announcement of a mass deportation or anything like that. This is an extra tool that we should have had that we now have available, and I'm glad we got the support to get that through the Parliament.

ANDREW CLENNELL: 'Cause presumably to get those countries to take the most difficult people, you'd have to, A, pay them, and B, perhaps take some of their criminals, take some people off them; is that fair?

TONY BURKE: Well, as I say, we're not about to make some mass deportation or anything like that. I know there is some bizarre speculation, I think maybe even from your next guest, that we're about to deport 80,000 people or something like that. You know, it's nothing like that, but there are small numbers of people ‑ well, large numbers of people who leave voluntarily every week, small numbers who leave forcibly, and smaller numbers who then lawyer up and say, well, I'm not going anywhere, and any country has the right to run its own immigration system, and that's what we want to be able to do.

ANDREW CLENNELL: You've also introduced a legislation to reintroduce ankle bracelets and the like for this cohort of criminal detainees who were released by that NZYQ decision. Won't the High Court just throw this out again? I know you have to try, and that's what you're doing, but isn't there a real danger the High Court will just chuck it out again if there's another appeal?

TONY BURKE: Look, when the last High Court decision came down on this, we had nine possible different approaches pre‑prepared, and we looked at the judgment, there was one of them that was an almost exact fit, we had to adjust it a little bit, it required a regulation that I signed off on the same day as the High Court decision, and then there was a further part of it that required legislation that's now in.

But effectively what we've done is, the High Court objected to the concept that the test was being used as a further punishment for something that the criminal law had already punished. So we've had to have a tighter test and reverse the test, so now it's not about what you've done, it's about what's required to keep the community safe into the future.

Now, you know, that is a modified test, it's a slightly different test. Not everybody who was previously on an ankle bracelet is likely to qualify under the new test, but there are people who are now going on to it and certainly the people where there's the greatest risk to community safety.

ANDREW CLENNELL: So how did the ‑‑

TONY BURKE: A good number of those are already on ankle bracelets.

ANDREW CLENNELL: Out of the two or three hundred released, how many will it affect then, do you think?

TONY BURKE: Well, as many as the High Court allows, but because I have delegates having to make a legal decision, if I pre‑judge what that number's going to be, then effectively this interview will have given rise to the next High Court challenge.

ANDREW CLENNELL: Wow. All right. Part of this deal with the Coalition to get this through involved you saying yes to a ban on mobile phones for those in detention. Are you doing this because there are criminal gangs operating out of immigration detention? That's certainly been reported on.

TONY BURKE: Yeah, well, I had announced that we were going to introduce this sort of legislation in the papers a few weeks earlier, and then the Opposition did ask for the legislation to be brought forward at the same time. So the government policy had already been announced. But what you say is true.

And this is where, you know, I go back to when I was first shadow for immigration back in ‑ well, 19 years ago now, and back then, if you looked at our detention centres, the big argument about detention centres were the family members and children who were in detention back then. You look at our detention centres now and about 90 per cent of people who are in detention centres have criminal convictions, many of them quite serious. And so we do have challenges where people who are members of outlaw motorcycle gangs, where people who have connections to organised crime have been wanting to run operations through detention centres. We can't run a system that way.

And so up until this point we've been able to search for weapons and we've been able to search for certain items, but we haven't been able to search for drugs, and that was a ridiculous situation.

Now the issue of phones, there are times where to get behind an operation someone's running you want to be able to look at their phone. We in Opposition had opposed similar legislation ‑‑

ANDREW CLENNELL: Yes.

TONY BURKE: ‑‑ on the basis that no one should be left in a situation where they can't contact family or contact their lawyers. So what ‑ and the previous government wasn't willing to accept that amendment. The legislation I introduced already had that amendment, so it fixes the problem that Labor had objected to in Opposition but still gives Border Force the powers that they need.

ANDREW CLENNELL: So they have a phone call with the phone on the wall, I imagine, as opposed to their own mobile phone; is that what you're talking about? A phone at the centre, if necessary?

TONY BURKE: Well, how it's handled will be operational, but the legal guarantee is if you take a communications device, you've got to give another communications device, and you've got to reasonably make sure that people have the phone numbers that they need for family and for their lawyers.

ANDREW CLENNELL: All right. The other provision in the bills was this creation of removal of countries of concern where you would ban except in special circumstances anyone being given a visa from certain countries if they don't take back people who you want to deport. Are you looking at Iran here, and what other countries?

TONY BURKE: Can I say, even the potential existence of this legislation, like once it was introduced, we started to get a change in behaviour from some of the countries who had been refusing returns. So I ‑ this will be one where we may well find we get the changes that we need without ever having to use this power, but we get the changes because the power is there.

Effectively this is people who are not refugees, who simply refuse to go back to their country of their passport, and the country says, "Well, we're not taking them if you force them", and up until now it's been very difficult diplomatically to be able to deal with that.

What we can now say to those countries is say, well, "If you don't want to take the returns of people who are your citizens, we can say that we're not going to have your business visas come to Australia".

The mere existence of that possibility gives a change in behaviour for those countries. So this may well be one, we'll see if I have to use it, but this may well be one where simply having the power gives a guarantee that we can operate in a more effective way.

ANDREW CLENNELL: A boat of Chinese Nationals arrived the other week in the Northern Territory and those on board I believe were taken to Nauru. We do seem to get the odd boat here, don't we, and how many people who've come by boat last couple of years in Australia do we currently detain on Nauru?

TONY BURKE: Well, the most important principle here is no one has stayed in Australia. So that last vessel that arrived, they were gone within 24 hours, and what you find on Nauru is a very large number of people who get there either know themselves that they don't have a valid asylum claim or are found through regional processing to not have a valid asylum claim, and just leave.

So you get very significant numbers of people who, you know, it's not like massive numbers of people are coming, but for those who come and try, a very significant number the moment they hit Nauru start making arrangements to go back to their country of origin.

ANDREW CLENNELL: How many have you got there?

TONY BURKE: People ‑ oh, those numbers get reported in the usual way. One thing that I'll say, there's lots I'll disagree with Scott Morrison on, one thing that he did get right was the fact that people smugglers want the daily information because they want to be able to message and change their operation when things aren't working, and I'm in no way going to be able to assist those operations with extra information.

ANDREW CLENNELL: There you go, as soon as ‑‑

TONY BURKE: Needless to say it is many years –

ANDREW CLENNELL: ‑‑ you all become Minister you adopt that approach.

TONY BURKE: No, no, it's true. Oh no, I've been okay with that one for a long time, I've got to say.

ANDREW CLENNELL: On water matters he called it.

TONY BURKE: The principle ‑ I beg your pardon?

ANDREW CLENNELL: On water matters he called it, didn't he, operational matters you can't comment on?

TONY BURKE: Yeah, yeah, that was his turn of phrase, but the reality is since that time right through till now, there hasn't been a successful voyage, not one. And you know, you'll only get three sorts of people who at different points will say the borders are now open, they'll be Liberals, Nationals and people smugglers. But anybody who has tried to get here through irregular means, they're gone from Australia very quickly to regional processing.

ANDREW CLENNELL: You're travelling to Indonesia this week for talks with your counterpart. In those talks the Indonesians have said there will be discussions concerning the return of the Bali Nine. Can you confirm that, and will the five remaining members be put in jail here upon their return or released into the community?

TONY BURKE: Okay. So, first of all, the reason for my trip is different to that.

ANDREW CLENNELL: Understand.

TONY BURKE: I'll get to that point. If I can explain, first of all, you know, the day I was sworn in to this portfolio, within about eight or nine hours I was on a plane to Indonesia.

For Home Affairs, for cyber security, for the Immigration portfolio, our relationship with Indonesia is incredibly important. So the moment there was a new government, I was waiting for my counterparts to be announced and then organising to be able to get over there and meet with them.

So that's the purpose of the trip. The Indonesian Minister has said publicly that he would like to talk to me about those five Australians who are in prison there in Indonesia, and I'm very grateful and respectful of Indonesia, it's got its own justice system. I'm very respectful and grateful that they want to be able to have that conversation, and I'll be approaching that conversation with a good deal of humility and listening to where the Indonesian Government's up to.

ANDREW CLENNELL: Are they going to jail here, as Don Farrell indicated, or are they being released if they return?

TONY BURKE: Anything beyond what I've said just in that answer I just gave you isn't helpful. Indonesia is the country that, you know, has respectfully put this on the agenda to have a conversation with me, and I'll be waiting until I have that conversation with them.

ANDREW CLENNELL: Why is this ‑‑

TONY BURKE: And I'm very grateful that they have suggested that we'll do that.

ANDREW CLENNELL: Why is this a priority for the government? Michaelia Cash was on last week, said it shouldn't be. Why is it?

TONY BURKE: Well, as I say, I'm going to Indonesia to talk about Home Affairs, to talk about cyber security and to talk about immigration with my new counterparts in that government. It's something that I wanted to do as soon as the new government came in, and something that I did the same day I was sworn in to this portfolio. That's the priority.

Indonesia, very, you know, I'm very grateful they have said we should also talk about these five Australians, and I'm very respectful that Indonesia's put that forward.

ANDREW CLENNELL: Why did you refuse a visa to this former Israeli Justice Minister, Ayelet Shaked, who wants to come here?

TONY BURKE: Yeah, there were two people who sought visas to appear at the same conference. One is a former head of the Israeli Air Force, and his visa was looked at, and he's here. There are two things about the visa that Ms Shaked sought that I want to just start with, and thank you for asking, this is the first time I've had a chance to talk about this.

First thing, it's in the public arena because she put it in the public arena. And the second thing I'll say is the visa that she sought was not here on behalf of the Israeli Government, was not a visitor visa, she sought a visa to come and make public statements. That means we have to have a look at what she said previously.

Now I have been refusing a large number of visas, and my department's been refusing visas of people who want to come here to talk about the conflict if we think that they are going to seriously undermine social cohesion when they're here.

Let me put it in these terms: if somebody came here, and we checked, and they came here wanting to make public statements and their previous public statements had included that they wanted all the Jews to leave Israel, so if someone had previously said they wanted all the Jews to leave Israel, I would not give them a visa.

Ms Shaked has said that all the Palestinians should leave Gaza. If somebody wanted to come here and had previously said that they had nominated specific cities in Israel and said they should be completely levelled, I wouldn't give them a visa to come here and make speeches. Ms Shaked has said specifically that about cities in Gaza, said that one of them should become a soccer field.

If someone previously had made comments about Israelis and had described Israelis, you know, using terms, you know, like being like an octopus or being like reptiles or something horrific like that, there's no way I'd let them in the country. Ms Shaked has compared Palestinian children to ‑ described them as little snakes.

Now I think while we accept that within Australia there will be a whole lot of Australians with really strong views, I think people, if there's one comment I hear all the time, it's they do not want the hatreds from overseas imported here, and whether those hatreds are demeaning of Israelis or demeaning of Palestinians, I'm going to have the exact same hard line.

I hear all the arguments about freedom of speech. My view's really simple. If you're simply coming here to demean people, we can do without you.

ANDREW CLENNELL: Well this decision's been labelled anti-Semitic and unacceptable given it involves a former high‑ranking Minister with a democratic ally. What do you say to that?

TONY BURKE: If that person was wanting to come on a visitor visa it would be a different test. She's no longer a Minister, so she's not coming representing the government, she's wanting to come on a public speaking tour, and I have to have the exact same principles against people who would demean Palestinians that I already have, and have been shown to have, against people who want to demean Israelis. And for people who put those labels on it, I've got to say, none of them are objecting when I was stopping people from coming here because they were going to say horrific anti-Semitic comments.

If someone's going to compare Palestinian children to snakes, to call for all 2 million people, Palestinians in Gaza to leave, to talk about cities being turned into soccer fields. You know, I get that people will call for the deaths of terrorists, but Ms Shaked has called for the killing of the mothers who kiss them good night. Like, we don't need that in Australia.

ANDREW CLENNELL: The Foreign Minister, Penny Wong, appeared to make clear during the week that an arrest warrant from the ICC would be honoured if Benjamin Netanyahu came here. Since we're talking about Israeli ministers could come here on a visitor visa, but not this former one, doesn't Benjamin Netanyahu risk arrest by your agencies if he were to come here?

TONY BURKE: Penny's made the comment that she's made consistently about Australia's support for International Law. Our support for International Law is something that used to be bipartisan, she's made that simple statement about an institution that we signed up to under the Howard Government, and Penny hasn't elaborated further on that, nor will I.

ANDREW CLENNELL: But implicit in that is you'd have to arrest him, isn't it, unless you want to leave the court?

TONY BURKE: Having just said Penny hasn't elaborated further on that, nor will I. That's as far as I'm going to go, Andrew.

ANDREW CLENNELL: Well, I mean, what does it mean then? I'm sorry, what does it actually mean? We've got to respect the court. Does respecting the court mean that you've got to respect their arrest warrants? It does, doesn't it?

TONY BURKE: We can go in circles, but I'm going to keep saying that the Foreign Minister, the words that she said, I've repeated them, and I'm not going to elaborate further.

ANDREW CLENNELL: The Opposition says you're taking the stance you are on the war, your government, because of seats like yours, because of the Muslim vote in Western Sydney, because of the pro‑Palestinian vote in parts of Sydney and Melbourne. What do you say to that?

TONY BURKE: Well, if that was the case I wouldn't have been rejecting all the visas of various people who've said horrific things about Israel and Israelis. But I have. I've been completely consistent.

My starting point on this is, my responsibility as ‑ you know, I've got a few different jobs, but my responsibility as Immigration Minister is to listen to the security advice that we've had from Director‑General of ASIO, that's all been said publicly about the threats to social cohesion, and if someone is coming for the specific purpose of a public speaking tour, where they have a record of saying things that would incite discord, then protecting Australia. And that's what I've done, that's what I'll continue to do, and you know, sometimes those decisions are ones which locally here people have said, "I wish you hadn't done that", sometimes they're ones that people locally here will support.

My obligation is a national security obligation to Australia, and I take it seriously.

ANDREW CLENNELL: How seriously do you see the prospect of another terror attack in Australia at the moment?

TONY BURKE: Well, there's a reason why the threat level's been raised from possible to probable. The answer to that is the chance of an attack now is probable. And that's not because there's a new group that's highly organised that's suddenly appeared. The threat level change was made because the nature of terrorism has changed. We're now seeing people, particularly young males, radicalised online, radicalised really quickly. The pressure cooker of where social cohesion can be at at the moment helps that along, and it's not a single ideology.

So you get a mixture of different ideologies happening here, some of them logically completely incompatible, but driving themselves to somebody taking an action that we define as terrorism, and the barriers to entry can be really small, you know, it's not necessarily five or six people organising an attack, it can be someone wielding a knife.

The threat level was raised for a serious reason, and anybody who thinks that I should ignore that threat level being raised and just be granting visas to anyone who wants to start any sort of argument on the basis of freedom of speech, I think should read again what Director‑General of ASIO said.

ANDREW CLENNELL: You've calmed down this Home office space for Anthony Albanese, haven't you? It probably shows as opposed to when Clare O'Neil and Andrew Giles were there, it probably shows it needed an experienced hand like you in there from the start.

TONY BURKE: I'll let other people make commentary on it. It's a job, as I've mentioned before, the immigration part of it is a portfolio I've been in and out of for 19 years. It's also the case that it's changed a lot. You know, the change from, you know, we mentioned before the detention centre population going from children to now principally people with really serious criminal records, the changes in terms of the different ways in which people will try to break the system.

But most fundamentally, a change that happened 12 months ago that no matter who was in the job was unexpected, which was a change in precedent from the High Court, and a period then when we had the decision and not the reasons.

So there were challenges 12 months ago no matter what. But certainly I'm happy with how we handled the last High Court challenge. We had the new regulation I signed off that night, it went to the Governor‑General the following morning, the legislation was introduced in the middle of the day that day, it's now passed the Parliament.

You know, what I want is our immigration system to be orderly, when it's an orderly system there's then some very good decisions that you can also make, as I've been making, about providing a home for the Ukrainians there. I'm gradually moving those Ukrainians on to permanent visas, there are Palestinians and Israelis who have fled the conflict who we're finding resolution for here and giving them three‑year humanitarian visas and different outcomes.

So to be able to do those sorts of things you need to make sure that the system itself is running in an orderly way, and it is.

ANDREW CLENNELL: But just finally, are you getting on top of net migration, because it has been too high, and the government's even admitted that?

TONY BURKE: Yeah. The challenge here, as I've said before, net migration as a measure, there are always some parts of net migration that aren't in the control of the Immigration Minister. For example, how many citizens come and leave at different points and things like that, or the formal agreement we have with New Zealand.

There are some areas that are very much within our control, for example, student visas. Now I will not for the life of me ever understand why Peter Dutton decided to vote against putting controls on those student visa numbers, but that's a decision for him.

ANDREW CLENNELL: Tony Burke, thank you so much for your time.

TONY BURKE: Always great to talk, see you.

ENDS