Business: Consideration of Legislation

25 July 2019

Senator Patrick: I seek leave to move a motion relating to the consideration of the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 and a related bill.

Leave not granted.

Senator Wong: Leader of the Opposition in the Senate: 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.

The PRESIDENT: 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.

Senator PATRICK: 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—

Senator Wong: It's conditional legislation.

Senator Patrick: 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 Odgers—if 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)

Senator Cormann: (Minister for Finance): 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.

Senator Patrick: I rise on a point of order, Madam Deputy President. The motion does not seek to delay. It seeks to have an order for the production—

The DEPUTY PRESIDENT: That's not a point of order, Senator Patrick. That's a debating point.

Senator Patrick: I'm just correcting the basis of the motion—