Senate debates

Thursday, 9 August 2007


Legal and Constitutional Affairs Committee; Reference

11:36 am

Photo of Guy BarnettGuy Barnett (Tasmania, Liberal Party) Share this | Hansard source

I stand to oppose this motion from Senator Nettle and the proposed amendment by Senator Bartlett. At the outset I want to say that every senator has a right and entitlement to express their views in this Senate chamber. Senator Nettle has been very strong and vigorous in putting forward her views and her concerns with respect to the procedures regarding the visa that has been removed from Dr Mohamed Haneef. Senator Nettle is entitled to do that; she is entitled to put a point of view. But a Senate inquiry is something that I strongly disagree with. Senator Nettle has opportunities to express her views or concerns with respect to the way that this matter has been conducted, the role of the minister, the role of the Australian Federal Police, the role of the DPP and so on and so forth. She can do that, of course, with an adjournment speech or through a motion to the Senate. But a Senate inquiry, which is the subject of the motion that is before us, is something that simply cannot be supported.

There are a number of reasons why it cannot be supported, and I would like to walk through those reasons with the Senate so that it is quite clear to Senator Nettle and Senator Bartlett and others. I say again that they are entitled to put their view and express their concerns in an open democracy such as Australia, but, if a Senate inquiry did take place, I believe it would be very bad public policy. Legally it would be fraught with danger. One of the reasons I say that is because today the Federal Court is hearing an appeal by Dr Haneef’s lawyers with respect to the decision by Minister Kevin Andrews to cancel Mohamed Haneef’s visa. In fact, the hearing began yesterday in the Federal Court in Brisbane, and I understand it is continuing today before Justice Jeffrey Spender.

Surely good public policy and good public practice is to not conduct Senate inquiries into matters that are before the court. Yes, I am a lawyer, and there are many lawyers in this place who would be well aware of the importance of due process. There are concerns that I have and others would have with respect to sub judice and bringing matters that are before the courts before a Senate inquiry. It could certainly prejudice the outcome of that case. So, while proceedings are before the court, I strongly oppose any inquiry into the matters that are being referred to by Senator Nettle and no doubt will be referred to by Senator Bartlett.

The motion also talks about the importance of inquiring into the role of the Australian Federal Police and the role of the Director of Public Prosecutions. We have heard from the Australian Federal Police that there are ongoing inquiries, and it is entirely inappropriate to be looking into matters which the police are currently investigating. We have had no end of advice on this side of the Senate from Senator Ellison, Senator David Johnston and others, who have indicated very firmly and strongly that it is totally inappropriate to be providing information or advice regarding police inquiries—whether it is the Australian Federal Police or state police or any other similar entity. Of course the DPP has a particular role to play. If the senators opposite want to look at the legislation and want to express a view about the role of that in general, of course they are entitled to do that in different forms and different ways in the public arena.

The motion refers to the merit of inquiring into not only the role of the Minister for Immigration and Citizenship, Mr Andrews, whom I will come back to shortly, but also the role of the Attorney-General and the Prime Minister. Goodness me, this is a far-reaching inquiry that has been recommended by Senator Nettle and the Greens! I think that is definitely going too far. In terms of the role of Minister Andrews, I want to put on the record that I used to be a colleague and an associate of Minister Andrews during my time as a young lawyer in Melbourne in the mid-1980s. Since then I have had the highest possible regard for Kevin Andrews and his capability, his skills and his professionalism. As far as I am concerned, based on the advice that I have received and the information I am aware of, he has acted entirely within the law. He has acted in accordance with the Migration Act. He has acted in accordance with the Solicitor-General’s advice, which has been made public. He has acted in accordance with that advice—that is, that his advice was within the law. He has discretion and he has acted within that discretion. The Solicitor-General’s advice, as I have indicated, has been made clear and made public. Minister Andrews has acted based on a ‘reasonable suspicion’. That is what the Migration Act says. If Senator Nettle or others in this place wish to put an amendment to change that act, to change the test that is relevant to whether the minister should or should not have discretion to form a reasonable suspicion, then they are entitled to do that.

Of course, with respect to the matters of criminal law and matters before the court, there is a different test. This is where the media, in my view, have become quite confused; they have confused those two tests. The minister is acting within his discretion, in accordance with the Migration Act, in accordance with that law, and he has formed a reasonable suspicion to revoke that visa. But, with respect to the Australian Federal Police and the DPP, obviously they have had to form a view, the test being ‘beyond reasonable doubt’. That is a different test, and you would say it has a higher threshold that needs to be met. They are the two different tests that apply. I want to say that, yes, the minister, in my view, has acted in accordance with the law and he has formed that reasonable suspicion. The view that he has put has certainly been backed up by the Solicitor-General.

I want to comment on the views of federal Labor, because they are different to state Labor. The view of the Labor Party in Queensland, put by the Premier, called for a Senate inquiry, which was noted by Senator Nettle. But federal Labor and Kevin Rudd have called for a judicial inquiry. No doubt Senator Ludwig will speak to those points shortly, but I see that as reeking of political opportunism for a good headline in the lead-up to an election. The media are certainly a part of this, highlighting the concerns that have been put by various stakeholders in the community. But federal Labor have called for a judicial inquiry, and I am concerned that they would do that, particularly when litigation is afoot. I will not delay the Senate any longer. For all of those reasons, I very strongly want to oppose the motion that has been put by Senator Nettle and the amendment to be proposed by Senator Bartlett on behalf of the Democrats.


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