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Tony Jones discusses the Tran case with Labor -

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TONY JONES: Tony Burke is the Opposition immigration spokesman. He joins us now in our Brisbane
studio. Thanks for being there.


TONY JONES: Now, many of us were shocked by the wrongful detention of Cornelia Rau, perhaps even
more so by the illegal detention and deportation of Vivian Solon. What do you think of this new
case, the details of which we've just had on our program last night on Tony Tran?

TONY BURKE: Tony, I wish I could say I was surprised. Unfortunately, we've now seen more than 200
cases where somebody has spent part of their life inside immigration detention, only to find out at
the end of that time that they were always lawfully in Australia. So, I wish I could still be
surprised by it but we've had now more than 200 lives turned upside down by mistakes that have been
made in this fashion.

TONY JONES: Let's consider for a moment what Tony Tran lost as a result of being wrongfully locked
up for five and a half years. His family was torn apart, his wife and Australian-born son ended up
in Korea, his son was then brought back to this country, but he wasn't able to see him for that
whole five and a half years and extraordinarily, during that period when his son was here and he
was in detention, the Immigration Department attempted to deport the boy back to effectively an
orphanage in Korea. Now, this is an extraordinary set of circumstances. What do you think of the

TONY BURKE: Well, some of these issues go to the cultural issues that developed within the
Department of Immigration that we've spoken about before. Where the nature of the leadership that
was given by successive ministers for that department drove a particular culture which resulted in
a culture of assumption, a culture of denial - finally - a culture of cover-up, all of which has
been reported in the Palmer and Comrie reports of a couple of years ago.

In terms of the rest of the detail, I have got to say, Tony, I can't give a final conclusion on all
the aspects of this case, because unusually for an election campaign, I'm not in a position and I'm
the only shadow minister in this situation where I'm not able to get the briefings directly from
departmental officials that would ordinarily be made available to a shadow minister.

TONY JONES: Could you explain what you mean by that? I mean, you're talking talking about the
caretaker provisions I would guess?

TONY BURKE: During the caretaker period, shadow ministers are ordinarily able to get direct access
- without the minister's office there present taking notes - direct access to departmental
officials. I wrote just before the election was called to Kevin Andrews, seeking a further one of
these meetings. I'd had two, other shadow ministers have had a succession of meetings. I received
on, what was it, I received it on the 17th of October, Kevin Andrews signed it on the 15th of
October, a letter saying that for this one department, the Opposition would be shut out of having
any further meetings.

TONY JONES: Do you know why he's taken this position? Have you obviously asked why?

TONY BURKE: Well, the - I think you can put it down to two reasons. We're either talking about a
cover-up of further incompetence or we're talking about arrogance. I think either of them are
probably plausible.

In terms of incompetence, the Government and this minister have form, whether it's the refugee
swap, the handling of Dr Haneef's case, letting Yvonne Ridley into the country. There have been a
succession of examples of incompetence.

In terms of arrogance it's once again public servants being viewed as though they're the property
of the Liberal Party. I've no doubt Kevin Andrews gets access to them during the election campaign
whenever he wants, but he's the one minister in the Government who's decided that the caretaker
provisions won't be extended to the Opposition during the campaign period.

TONY JONES: What are the legal implications of this? Are the conventions simply that, conventions
that have no legal weight and he can do this and legally do this?

TONY BURKE: The convention has always been that the shadow minister would write to the minister and
seek meetings. The minister would then arrange the appropriate time.

I did write directly to the departmental secretary as well, who in his response to me referred to
discussions with the department of Prime Minister and Cabinet and said, no, you have to go through
the minister.

So I've no doubt the Prime Minister is aware of what Kevin Andrews has done, because PM and C were
notified. But Kevin Andrews has decided to shut down on providing all the information to the

Now as I say, it may be just straight arrogance, it may be further examples of incompetence that if
anything like this arose during the campaign, they wanted to make sure that we weren't able to get
direct access to the bureaucrats.

But what it ultimately means in a case like the one we're dealing with tonight, I can certainly
look at the evidence that's been presented, see which evidence and certainly what was presented
last night puts Mr Tran's case in a very strong light and I can talk about the issues that we would
weigh up if we were ever presented with the file, if there is a change of government in the couple
of weeks' time.

But in terms of being able to offer any sort of final conclusion, Kevin Andrews, through his use of
or abuse of what everyone else regards as standard protocols during an election campaign, has shut
us down.

TONY JONES: I'll come to what you would do if you had the complete file in government in a moment.
First, you've made your case for access directly, have you, to Andrew Metcalfe?

TONY BURKE: That's right. Kevin Andrews - initially when I wrote - didn't reply in what I regarded
as a reasonable time. Previously we'd always had a turnover of a day or so. So I wrote directly to
Andrew Metcalfe and I understand why his hands are tied but he contacted PM and C and then wrote
back to me saying the advice from PM and C was that I had to continue to go directly through the

So as I say, I appreciate the position that the departmental secretary's in, but because he did
notify PM and C I have no doubt that the Prime Minister would be aware of what Kevin Andrews is

TONY JONES: Let's leave that aside for a moment. You know Tony Tran and his son have never received
an apology. They're still in migration limbo, as we've called it. If you were to come to
government, what would you do to resolve this case?

TONY BURKE: Well, the first thing is that the decision that says he was legally in Australia from
everything that's been presented so far was something that the department has fully acknowledged.
So I've always taken a view that if you are wrongfully detained, that's wrong. And an apology for
having been wrongfully detained is not an unreasonable thing to go to.

But what would I do, I would look at the file and you adopt a number of principles in how you weigh
that up, principles like no one should be stateless, the impact on children being involved.

You also have to weigh up character issues and you don't want to get hysterical about it, but it is
true that part of the role of the Minister for Immigration is a national security role.

I've got no evidence presented that that's relevant in this case. But as I say, you weigh those
issues up and essentially follow the guidelines that were brought down by the Commonwealth
Ombudsman in a report that he brought out into 501 deportations a couple of years ago. Where he
just gave a good summary of the range of issues that a minister would properly take into account
when exercising discretions under that part of the Act, and depending on the precise visa that Mr
Tran applies for at any point of time, you'd weigh up similar principles.

TONY JONES: Very briefly, would you say on the surface of it, he has a strong case for remaining in
Australia and a strong case for compensation, be that fought through by the courts or an ex-gratia

TONY BURKE: Well, certainly if you're wrongfully locked up, it's difficult to see that there
wouldn't be a case for compensation that would flow from that. The exact quantum of that is a
matter that gets sorted out through negotiation and ultimately if those negotiations break down,
then through the courts.

In terms of permanence, the first principle you have to get through is if not in Australia, then
where? It appears from what's been presented so far that Mr Tran in fact has nowhere else to go.
And certainly, it would be unusual to seriously look at relocating somebody who has been found to
be a refugee back in the country from which it had been independently found they were being

So it appears that there are very few options available. That would have to weigh very heavily. But
as I say, issues like national security issues, I've got no reason to believe that they're part of
this case, but without being able to get access to the full file, then I can't get to the point of
that final conclusion.

TONY JONES: What we've realised from talking to the Ombudsman tonight is that there are 200 other
cases like this, or this is one of another 200 cases besides Rau and Solon. There were calls for a
royal commission into why these cases happened in the past. If you come to government, will you
have a royal commission to get to the bottom of this once and for all?

TONY BURKE: My first thing that I want to do is have a look at what can be brought out publicly. I
want to get to those details. I've always thought that a royal commission was the way to deal with
these issues. My criticism of it being handled solely by the Commonwealth Ombudsman was that the
Commonwealth Ombudsman was not able to get to the bottom of when any of these problems had reached
the minister's office.

Within his powers the Commonwealth Ombudsman has done a fantastic job, but I imagine as minister, I
would be able to get access to the relevant files to be able to see whether or not a royal
commission was the best way to deal with this or whether you'd look at full release of documents.
Certainly I've always taken the view that if the Howard Government were to remain in place, which
it has so far, then that would require the openness of an inquiry with all of the powers of a royal

The extent to which the powers for public release of information would be in the hands of a
minister is something that I'd be able to look at hopefully, if I hold that job, in a couple of
weeks' time.

TONY JONES: Tony Burke we're out of time. We'll have to leave you there. We thank you very much for
coming to join us tonight.

TONY BURKE: It's a pleasure, Tony.