Labor blindsided after detainee documents tabled

One of the nation’s most powerful public servants blindsided her two ministers by releasing key new details about ex-detainees’ criminal records after the High Court’s landmark decision overturning indefinite detention.

The 17-page document – released on Monday, February 12, after questioning from Liberal Senator James Paterson at Senate estimates that same day – revealed for the first time that of the 149 former detainees, seven had previously been convicted of murder or attempted murder, 37 of sexual offences and 72 of assault and violent offending, kidnapping or armed robbery.

Home Affairs Minister Clare O’Neil and Immigration Minister Andrew Giles hoped to keep the document from public scrutiny, according to seven government sources who spoke to this masthead on background, planning instead for the recently appointed Home Affairs Secretary Stephanie Foster to provide verbal answers to Paterson’s questions late on the Monday afternoon.

Home Affairs Secretary Stephanie Foster at the Senate estimates hearing on February 12. Credit: Alex Ellinghausen

Instead, the tabling of the document on the morning of February 12 derailed Labor’s strategy for how to handle the release of the information, dominated news bulletins all day and reignited a furious debate about the release of the detainees.

In the days leading up to the Senate estimates appearance, Foster and departmental staff met with ministerial staff from the offices of O’Neil and Giles to discuss how to handle a request for information about the detainees from Paterson, the Coalition’s home affairs spokesman.

Planning meetings between ministerial and departmental staff before Senate estimates hearings are standard practice. At this meeting, which was a video conference call, Foster was joined by three senior staff from the ministers’ office and five departmental officials were present to discuss how best to handle Paterson’s request.

“Stephanie came into that meeting and said she had spoken to other secretaries and there was a general feeling that a letter like that should not be responded to with a written response,” said a source, who asked not to be named so they could speak freely.

“She came into the meeting with a clear sense of what would happen and what she would say [in the senate hearing] ... she indicated she wasn’t going to provide a written response to Paterson, that she had made this decision.”

This masthead has spoken to six other sources within the government, none of whom were in the meeting but all of whom had been told what was discussed, and all six agreed that Foster had indicated she would not provide a written answer to Paterson’s question.

Rather than tabling written answers early in the day, Foster was expected to provide verbal answers later in the day, during “outcome 3” of the hearings, at about 4.30pm.

Instead, the document was tabled just after 9.30am.

Five of the seven sources this masthead spoke to said it remained unclear why the plan that Foster had outlined during the pre-estimates meeting had changed.

They did not suggest malice or misbehaviour from Foster, a senior public servant with more than three decades of experience, and said there may have been a simple misunderstanding.

“She blindsided the entire government and infuriated ministers,” one of them said.

“It put us on the back foot immediately. The plan was it would be released later in the afternoon, she didn’t have to do it so quickly but suddenly, they [the opposition] had all this information. Tactically it was the wrong thing to do.”

The behind-the-scenes turmoil has raised fresh questions about Home Affairs, a department that has been embroiled in several recent scandals and which minister Clare O’Neil has sought to reform, including by appointing Foster to replace sacked secretary Michael Pezzullo.

Foster is due to appear again before the Senate committee on Wednesday and is expected to face further questions about the NZYQ decision, as well as the tensions between her and her two portfolio ministers.

She will then appear alongside O’Neil at a conference in early April at the Australian National University and is expected to outline details of how she plans to reform the sprawling department.

O’Neil has called four inquiries into aspects of Home Affairs work: the Nixon review into failures to deal with visa fraud and human trafficking; the Richardson probe into failures in the management of offshore detention procurement; the Parkinson report into the migration system; and the Briggs investigation into Pezzullo’s misconduct.

The inquiries have all created political headaches for Labor.

As one of the seven sources said, Home Affairs was “the biggest problem the government has, Pezzullo papered over the cracks with his brashness but the evidence is there. It’s a dumpster fire”.

In response to a series of detailed questions to Foster, a spokesperson for the Department of Home Affairs said only that “Ms Foster tabled the document you refer to at approximately 9.38am on Monday, 12 February 2024 in response to a request from Senator Paterson”.

“Ms Foster meets regularly with ministers to discuss a range of matters that impact the department and its functions. The department does not comment on the content of those discussions.”

In response to the same questions, a spokesperson for Giles and O’Neil said: “The opposition requested the tabling of a document. The document was tabled”.

“The government argued strongly against the decision of the High Court. Our number one priority in responding has been, and will continue to be, community safety.”

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