Senate debates

Thursday, 25 July 2019


Consideration of Legislation

9:46 am

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | Hansard source

The Australian Greens will be supporting this motion to suspend standing orders. I place on the record that, should Senator Patrick be enabled to move the substantive motion, the Australian Greens would support both part A and part B.

What this debate is fundamentally about is the doctrine of separation of powers, because what this legislation seeks to do is to establish Minister Peter Dutton as judge and jury and to allow him to impose punishment on Australian citizens for alleged criminal activities. That is simply not his job. I mean, Earth to the government: that's the job of our legal system. And the doctrine of separation of powers makes it clear that courts should be allowed to fulfil that function unencumbered. In fact, as a finding of the full court of the Federal Court of Australia provides, 'It is a fundamental principle of the Australian Constitution, flowing from chapter 3, that the adjudication and punishment of criminal guilt for offences against a law of the Commonwealth is exclusively within the province of courts, exercising the judicial power of the Commonwealth.' I'll just repeat that last bit: 'exclusively within the province of courts'.

Now here's Peter Dutton trying to reach across that separation of powers and drag back to himself the capacity to impose punishment for alleged criminal behaviour, with no standard of proof established. This minister, Minister Dutton, is on a lifelong political crusade to undermine the rule of law in this country.

The Australian Greens do support the rule of law; the Australian Greens do support the separation of powers. And it is those principles that will inform the way that we vote on this matter.

In regard to the provision of the Solicitor-General's advice, I make the blindingly obvious point that governments regularly choose to release the advice of solicitors-general when they believe it's in their political interests to do so. I've seen it many times, previously, in the Tasmanian parliament, and I've seen it here in the Commonwealth parliament. In fact, the legal professional privilege which the government seeks to rely on is something that the government is able to waive. It is their advice. They don't need the permission of the Solicitor-General to release the advice; the government can choose to release the advice, and often do when it's in their political interests to do so.

Senator Patrick interjecting—

I'll take that helpful interjection from Senator Patrick, who makes another blindingly obvious point: that this advice was actually paid for by the Australian people. It's actually their advice, not the government's, and they're entitled to see it.

At its heart, this is about allowing the Senate to have an informed debate about a bill that, on the face of it, prima facie, is unconstitutional. I'm not a lawyer, but I can read and I can listen and I know that numerous legal experts have expressed opinions that call into significant doubt the constitutionality of this legislation. We're entitled as senators in this house of review to have all the necessary information put before us by the government to allow us to have an informed debate, and we're entitled to have all the information put before us by this government that would allow every senator to make an informed decision about legislation. This government is now behaving in a secretive way and is denying us, who represent the Australian people in this place, the information that we need to do our jobs and hold the government to account. As I said, this motion will be supported by the Australian Greens.


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