Thursday, 25 July 2019
Consideration of Legislation
In his short contribution, Minister Cormann was keen to wipe away, or to gloss over, the substantive issues that are engaged by the motion before us. This motion goes to the separation of powers, as other speakers have pointed out. I want to quote the public remarks by the President of the Law Council, Mr Arthur Moses. He has said:
A Commonwealth law may be unconstitutional if it authorises the Executive to determine and impose punishment for criminal conduct. A ministerial decision to grant a TEO is arguably punitive, and arguably invalid. In granting a TEO, a minister is effectively determining and imposing punishment for a citizen’s alleged conduct—or prospective offence—in the form of an order preventing re-entry.
Protecting the safety and security of the Australian people must always be the paramount concern of Government. But rushed laws at risk of Constitutional challenge pose an unnecessary risk to national security. The Australian people must be able to have confidence that public safety and the work of our intelligence and law enforcement agencies is protected by laws and powers that are strong, proportional and without legal ambiguity.
That was the advice that was provided to the PJCIS and that is the advice that continues to be provided by the Law Council and other senior lawyers in this country.
The government has put the view that we ought to wait until the committee stage and deal with this in that debate. But the problem is that the government has shown no inclination to provide the advice that has been reportedly sought by the PJCIS and is now sought by this chamber. The government has asserted that the bill is constitutional. But who in their right mind would trust these people? The government has shown over many years that it is more than happy to play with the truth when describing its legal advice. Just ask Solicitor-General Justin Gleeson. Ask him if Senator Brandis truthfully and appropriately represented his advice to the PJCIS on the constitutionality of bills. Because he didn't; he didn't at all. He misled the PJCIS, and it places this chamber in a very difficult position because we cannot rely on the advice that is provided by government in relation to constitutionality. We cannot rely on the government to provide some sort of precis of the Solicitor-General's advice, because the government has been caught time and time again actively misleading this chamber about that very matter. And do we really think that this practice stopped when Senator Brandis left this place?
It's not unprecedented for advice to be released. The Solicitor-General's advice has been released at least nine times in the past two decades. I want to reflect on what occurred in this chamber in relation to one of those occurrences. On Thursday, 17 February 2000, back in the Howard government, this chamber was considering the Ministers of State and Other Legislation Amendment Bill 2000. Senator Ellison advised the chamber that an opinion on the legislation had been sought from the Solicitor-General, and Senator Robert Ray on this side of the chamber then asked for that advice. Senator Ellison was happy to provide it. His comments in providing it are really instructive:
… this is a matter which does not involve an individual case. It is a technical matter, not necessarily a strategic matter. It does affect all governments of all political persuasions. Therefore, on the basis that it does not set a precedent, the government does think it should be tabled …
We're asking for the advice today on the same basis. It is an important question to assist the chamber in assessing a policy proposition that has been put before us in the form of legislation and we do not consider that providing advice would set a precedent but we do consider that on this occasion it is necessary. It would surprise no-one that the Morrison government is less committed to transparency than the Howard government was. In fact this government falls short of the Howard government in so many ways. I'll conclude by reflecting on what Senator Ray said when he was requesting that advice from Senator Ellison 19 years ago:
Governments usually table that legal advice when it is not terribly controversial and when it assists their case; they never do it if it does not assist their case.
The question for all of you is: does the legal advice that you're sitting on assist your case or not?