Thursday, 25 July 2019
Consideration of Legislation
The Leader of the Government in the Senate is entitled to deny leave, but I would make the point that there have been many occasions on which he and the Manager of Government Business in the Senate have moved motions in this chamber on the basis that they have been provided to the Clerk, but many senators have not yet received them. The leader of the government saying he hasn't seen it because his manager hasn't provided it to him is really not a basis to deny leave.
Leave is a courtesy granted by each individual senator. There is no need for the basis or the reason for it being denied or otherwise to be explained. I appreciate the point you have made, Senator Wong. Senator Patrick, there are a couple of options here. You can move to suspend. You can give the government time to look at it. You can seek leave to move a motion at any time if leave is granted later. I call you now with those options before you.
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—
Yes, conditional legislation—thank you, Senator Wong. This is simply not acceptable. I know the government is of the view that you do not have to provide legal advice. That view is inconsistent with the laws of this country, and I refer you to Odgersif you care to read that over the weekend, you might learn a little bit about legal professional privilege—but, if there's any doubt about that, I refer you to Egan v Chadwick. The New South Wales Court of Appeal—I'm sure Senator Keneally will tell you all about it, because I think she was there at the time—said that the parliament has a right to see the legal advice upon which the government is making decisions. An essential part of the oversight role of the parliament is to make sure we fully understand what it is that you are presenting. In this case it's critically important. This is a matter of whether or not this bill is constitutional.
I'll tell you in my second reading speech that we support the principles of the bill, but we don't want to have a situation where the first time a TEO is issued the matter ends up in the High Court. That's not the way we should be making laws. It's not good law unless we are satisfied as to its constitutionality. Some of the constitutional matters of concern relate to whether or not you can prohibit an Australian returning to Australia, and I think it's relatively clear that you can't stop an Australian coming to this country. That was the unanimous ruling of the High Court in 1988.
The second concern is the government's own concern, because it's in their bill, as to whether or not the review that they have established is lawful and whether or not they're actually using executive power to in some way constrain someone. When there's a control order, it has to be a judge that issues the control order. This is a step in a direction where ministers can in effect provide punitive action against Australian citizens without a court. We need to see that advice. (Time expired)
The government will be opposing this suspension. The matters that Senator Patrick has raised in his contribution are appropriately dealt with in the context of the debate on legislation, which is now delayed because of the steps that he has taken. This is government business time. This is a time for the government to bring on legislation. This is very important legislation. Let's remind ourselves what this is about. This is about making sure that the government of Australia has the capacity to appropriately manage risk in relation to Australians who have decided to fight as foreign terrorist fighters in overseas battle zones. The number one responsibility of the Australian government here is to keep the Australian community safe.
I completely respect that as part of the consideration of this legislation there were matters that Senator Patrick raised and that the shadow Attorney-General, Mr Dreyfus, sought to pursue in the House of Representatives. Then, after the House of Representatives decided to reject his views and reject the amendments he put forward, the Labor Party voted in favour of the bill as a whole. All of these matters that Senator Patrick just raised will be appropriately dealt with in the course of the debate on the legislation. To seek to essentially procedurally derail the proper consideration of the government's agenda is not the appropriate way forward.
Right now, if the procedural step that Senator Patrick just took had not been taken, we would be dealing with the second reading debate on what is a very important piece of legislation to keep the Australian community safe. We would be going into the committee stage in consideration of this bill. During that committee consideration stage, it is of course open to Senator Patrick to ask questions of the minister dealing with the legislation to satisfy himself in relation to all of the issues he's concerned about. This is not the way to deal with these matters and it is preventing the government from properly pursuing its legislative agenda consistent with its business program here in the Senate. On that basis, the government can't agree to it.
Of course the government should release the Solicitor-General's advice on the temporary exclusion order legislation. Of course they should. It's not just Senator Patrick who thinks they should. It's not just the Australian Labor Party that thinks they should. The Law Council of Australia says they should. In fact, it was the Parliamentary Joint Committee on Intelligence and Security, chaired by Liberal member Andrew Hastie and dominated by Liberal Party members, that made a recommendation that the government should release the Solicitor-General's advice and prove that this legislation is constitutional. In voting against this motion today, the government is voting against the recommendation made by its own Liberal dominated committee, with its own Liberal chair. Senators in this place—Senator Abetz, Senator Stokes and Senator Fawcett—put their names to a recommendation that called on the government to do exactly what Senator Patrick's motion is calling on the government to do here today.
Let's make no mistake about this. This is no small ask. This is no niggling request from Senator Patrick. This is, in fact, the very question that Australians want the answer to from this government, because Australians, this parliament, and, indeed, the Australian Labor Party want a temporary exclusion order scheme that works, that keeps Australians safe and that is constitutionally valid and will withstand a High Court challenge. It is no good this parliament passing legislation if that legislation gets thrown out by the High Court and Australians are left less safe than they would be had this legislation not passed. That is a farcical situation and yet it is the one the government is continuing to contemplate and leave in doubt.
Let me make clear that Labor will be doing a number of things in relation to Senator Patrick's motion. I advise the Senate that, if standing orders are suspended so that Senator Patrick can move his motion, I will move an amendment to paragraph (a) so that the motion reads, 'There be laid on the table by 11 am today by the minister.' I also advise that, because the opposition do not intend for this legislation to be delayed by this parliament, I will ask for the question to be divided so the opposition can support paragraph (a) and oppose paragraph (b).
Labor have always supported the intent of the temporary exclusion order legislation. We supported it in the April report of the Parliamentary Joint Committee on Intelligence and Security. We supported the 18 substantive recommendations put forward by that Liberal dominated committee. We, in fact, are the party that have been consistent on the temporary exclusion order legislation. The flip-flopping has happened over there, on the government side, because you have Andrew Hastie, Julian Leeser, Senator Abetz, Senator Stoker and Senator Fawcett who have all put their names, and the Liberal Party's position, behind those 18 recommendations.
And what has the government done? It has rejected four of those recommendations in whole, it has rejected six of them in part and it has completely ignored one. And the one it has completely ignored is the subject of this motion here today. It has completely ignored the call from the Liberal-dominated Parliamentary Joint Committee on Intelligence and Security to produce advice from the Solicitor-General that shows that this legislation is constitutional.
It is farcical for the government to say that they can't produce it, because they'll be waiving privilege. In fact, if they even talk about the content of the Solicitor-General's advice, they are waiving privilege. And when do they do that? They do it all the time. They do it every time they talk about the medevac legislation. Then they talk all about the content of the Solicitor-General's advice; they're more than happy to put it out there for the public to see. But when it comes to a fundamental question on this legislation, which is designed to keep Australians safe from terrorists, from foreign fighters, then this government—well, they just go weak. They cannot produce, for the parliament or the Australian public, the advice from the Solicitor-General that shows that their approach—which, as Senator McAllister has pointed out, is four years late, because the UK parliament did this very same thing in 2015—on this bill is constitutional.
We will support this legislation because we want to see Australians safe. But we put on the record that we have concerns, and the government has yet to allay them, as to whether this legislation is constitutional. (Time expired)
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.
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?
This morning I have been confronted with this amendment to the bill asking for the Minister for Home Affairs to provide the Solicitor-General's advice on the constitutionality of the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019. I have had a briefing from the government with regard to the visa TEO and I am quite happy with it. I see this as a ploy to actually derail this whole bill from going through. We debated here in this chamber for quite some time yesterday. I am of the understanding that Senator Rex Patrick has been briefed by the government and could have asked these questions with regard to this. I have been assured that I could be given another briefing with regard to this. Decisions have to be made in this place with regard to this bill. We're talking about people coming into this country who have gone to fight against our values and our principles in other countries and have actually destroyed those countries, killed people, raped women and left children homeless. Those people wish to come back to Australia. I know the general feeling of the majority of the Australian people: they don't want them back in this country.
The bill is about stopping these people from virtually getting on a plane and coming to Australia. They have to apply for a visa. Two years then have to pass before they can get into the country so that things can be put into place in the country to make sure that they are being watched. If you listen to the comments of the Greens, you'll hear that they're more worried about their human rights and their freedom to be able to do whatever they want to do. There was no freedom given to the people whom they murdered and whose countries they destroyed but they believe that they have the right to come here to Australia. It's in the interest of the Greens to allow this to derail it and to stop it. Constitutionally I have to rely upon the government and the Solicitor-General to actually have put in place the procedures that we need to ensure that this bill is correct.
You, the Labor Party, put amendments forward that are just prepared to water the whole lot down. You, the Labor Party, have been so weak on border protection in this country. You are not prepared—through you, Chair. You have not done your job in protecting this country and the Australian people. I don't trust the Labor Party on border protection. You would open up the gates to allow these people in. Your amendments would do just that. They would water it down completely so that we would not be able to stop these people getting in, plus their families, plus their spouses. The people are fed up with it. People in this country are in fear about the terrorism on our streets. I am relying on the government to get this bill passed—and that this bill does comply with the Constitution and constitutionality, and that it is right to be able to pass it. I would say we need to put this in place now, and support the government on this. You're toing and froing with this, and it's just a ploy to stop it here in the parliament. I will not be supporting this motion. I want to see these people stopped from coming into the country.
There's a fundamental question here that sits on the shoulders of the Labor Party as the alternative government of Australia: why would the Labor Party want to share the legal advice to the government of Australia in relation to this matter with foreign fighters and foreign terrorists? In the end, the consequence of publishing such advice would be that it is then in the hands of those foreign fighters and foreign terrorists. We all know that immigration laws in this country are highly litigated. We know they are highly litigated, because activist lawyers such as Julian Burnside, from the Greens, will always take these matters to court. They will always stand on the side of people who want to try to undermine national security laws and our immigration laws. Yet the Labor Party want to put in the hands of those activist lawyers, foreign fighters and terrorists the legal advice upon which the government would then defend the laws of the country. That's an irresponsible act.
We equally see the Labor Party time-wasting on something they say they're happy to support. Indeed, in the House of Representatives, they ultimately passed this legislation completely unamended. Yet they're happy to come into this place and waste time, and potentially undermine the legal defence of this. That is the irresponsibility we see from the Labor Party, and the Labor Party ought—
In the remaining 26 seconds, I want to respectfully remind Senator Hanson that she's putting her trust in the same mob that went out of its way to put her in jail. She's giving support to the same mob that did whatever it took to take her out of the political landscape in this country and get her put—as it turned out, wrongfully—behind bars. Do not trust these people. Do not give them unfettered power.