Senate debates

Tuesday, 28 October 2014

Bills

Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014; In Committee

9:17 pm

Photo of David LeyonhjelmDavid Leyonhjelm (NSW, Liberal Democratic Party) Share this | Hansard source

I move amendment (1) on sheet 7597:

(1) Schedule 1, item 51, page 60 (line 19), at the end of subsection 3ZZHA(2), add:

  ; (g) the disclosure is made reasonably and in good faith, and in the public interest;

(h) the disclosure concerns corruption or misconduct in relation to the issuing or execution of a delayed notification search warrant.

Very simply, this amendment ensures that the public interest defence, and also the conduct or misconduct defence, are in the bill and not in the explanatory memorandum. The significance of this is quite simply that the explanatory memorandum is not referred to unless the bill is poorly drafted—unless the meaning is unclear. The explanatory memorandum is not the law. The law is what is in the bill. It does not help to go adding things to the explanatory memorandum, except in cases where the law is not clear. The law is clear. Therefore, the public interest defence for a disclosure of delayed notification, or instances of corruption or misconduct, will not be available to defendants as a defence under normal circumstances. Indeed, it would only be available to defendants under circumstances where the court felt that the bill had not been drafted sufficiently accurately. Therefore, it is important that it be in the bill and not left to the explanatory memorandum.

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