Talking Point: Roger Jaensch made a tactical error, for Alan Tudge it was a different matter

Housing Minister Roger Jaensch is facing accusations he misled the Parliament last Thursday. But his conduct is angelic compared with the actions of a federal minister, writes Greg Barns.

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HOUSING Minister Roger Jaensch is facing accusations he misled the Parliament last Thursday. But his conduct is angelic compared with the actions of federal Immigration Minister Alan Tudge. While in the former case he made a tactical error in not correcting the record, in the latter the result of his actions was the deprivation of liberty of an innocent person.

To get the Jaensch matter out of the way first. The underwhelming housing minister was neatly set up by the Greens who had a copy of a cabinet minute which proposed that eviction of tenants be made easier. The decision was never acted upon. In Parliament, Mr Jaensch denied, when first asked, if such a decision had been taken.

Tasmanian Parliament. Minister Roger Jaensch during amendments to the Major Projects bill.

He said no. He was wrong of course. But instead of correcting the record and admitting his error, he and the Premier Mr Gutwein dug in. Mr Jaensch denied misleading parliament and said his original answer was correct, but it wasn’t a good look. Mr Jaensch is not the first minister accused of misleading parliament, wittingly or otherwise, and he will not be the last. He could fix the issue by issuing a mea culpa.

But Mr Tudge’s culpability is in an entirely different category and it is amazing that it is not front page news and the dominant political story of the moment. It is rare that a senior judicial officer in this country describes a minister’s conduct as “criminal”. How did this come about?

An asylum seeker from Afghanistan who had worked for the Afghan Army applied for a visa to remain in Australia. The Home Affairs Department declined to issue a visa and the man, as his is right, sought a review in the Administrative Appeals Tribunal (AAT). It reversed the decision and granted the visa on March 11 this year. The man should have been immediately released from the Yongah Hill Immigration Detention Centre in Western Australia.

But Mr Tudge as minister kept the man detained, and appealed against the decision. The Federal Court found this was a blatant breach of the law. You cannot keep someone detained who has been granted a visa, irrespective of the fact they may later lose that visa if an appeal is successful.

Alan Tudge. Picture: NCA NewsWire

Justice Flick used strong and unambiguous language about Mr Tudge’s actions. It was, he said, “disgraceful”. Then there were these observations and findings by Justice Flick: “The minister has acted unlawfully. His actions have unlawfully deprived a person of his liberty”; “His conduct exposes him to both civil and potentially criminal sanctions, not limited to a proceeding for contempt”; “In the absence of explanation, the minister has engaged in conduct which can only be described as criminal.”

And Mr Tudge’s actions meant that Justice Flick, while disagreeing with the AAT, refused to revoke the visa. No doubt the man’s lawyers will now sue for false imprisonment, and rightly so. Mr Tudge’s contemptuous approach could cost taxpayers not only damages for false imprisonment but even exemplary damages, which are awarded if the wrongdoer needs to be taught a lesson.

It’s not the first time Tudge’s actions have been scrutinised by the courts. Along with the Health Minister Greg Hunt and Victorian Liberal MP Michael Sukkar, Tudge in 2017 faced the Victorian Court of Appeal over remarks he and his colleagues made about Victorian sentencing practices in terrorism cases, right in the middle of an appeal dealing with that very question. The trio avoided contempt charges after the court accepted their belated apology, noting that the ministers had sufficiently “acknowledged and accepted their contempt of court”.

The attitude of Mr Tudge, and that of Attorney-General Christian Porter, who defended him last week, is deeply concerning.

As this columnist argued in Rise of the Right: The War on Australia’s Liberal Values (Hardie Grant 2019) ever since former prime minister John Howard legislated in 2001 to allow serious breaches of law so Australian officials could force the Tampa, a boat that had rescued asylum-seekers back into the water, the Liberal Party’s attitude to the independence of the judiciary and to the rule of law has been largely abandoned.

Mr Tudge’s actions cost a man his liberty. It makes the allegations against his state colleague Mr Jaensch seem like a parking ticket.

Hobart barrister Greg Barns SC is a human rights lawyer.