Senate debates

Thursday, 25 July 2019


Consideration of Legislation

9:33 am

Photo of Rex PatrickRex Patrick (SA, Centre Alliance) Share this | Hansard source

Pursuant to contingent notice of motion, I move:

That so much of the standing orders be suspended as would prevent me moving a motion relating to the conduct of business, namely a motion relating to the consideration of the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 and a related bill.

There has been considerable doubt in respect of the constitutionality of this bill that the Senate is considering. The constitutionality of the measures contained in the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 effectively providing for the temporary exclusion of Australian citizens from their own country remains highly uncertain. In 1988 the High Court struck down a law that imposed an immigration clearance fee on all persons, including citizens arriving in Australia by air. The unanimous decision of the court confirmed that:

… the right of Australian citizens to enter the country is not qualified by any law imposing a need to obtain a licence or 'clearance' from the executive …

Entry also cannot depend on holding a passport. There is no unqualified right to a passport, but legal advice to the government has long been to the effect that an Australian citizen cannot lawfully be denied entry even without a passport.

In the 1960s the Australian government adopted stalling techniques to prevent Australian journalist Wilfred Burchett from returning. Burchett was a communist living overseas and was strictly condemned by the government as a traitor. He was repeatedly denied access to a passport. However, cabinet records released by the National Archives show that the government was well aware, on advice from the Attorney-General's Department, that Burchett could not lawfully be kept out of Australia. That advice was kept secret for more than 30 years. That's a bit of history, but the constitutional uncertainty about this bill is very current.

We've had the President of the Law Council raising concerns about this. We have had Professor Helen Irving also raising concerns about this, but I can take you to the bill itself. If we go to section 30 of the bill, severability, it says, 'If section 14 is not a valid law of the Commonwealth'—you've got a contingency in here in the event that this is not constitutional. It's not me that's saying this, it's the government saying that this may not be constitutional. If this bill turns out not to be constitutional, you're going to remove the review right. We're talking about people—


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