Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

The fourth recommendation of the committee was to amend the bill so that, in determining the best interests of a child before issuing a temporary exclusion order, the minister would have to take into account the child's age, maturity, sex, background, physical and mental health, the right to receive an education and other matters. The government's amendments would allow the minister to be wilfully blind to those matters because they would allow the minister to say, 'Those matters are not relevant.' But the committee's recommendation was that those matters are relevant, that it should not be for the minister to decide whether or not those matters are relevant but, rather, that the act should so provide. Amendment 26 addresses this issue and would implement recommendation 4 in full.

I come to recommendation 5. This fifth recommendation of the committee was to amend the bill to require a temporary exclusion order to set out, first, that the issuing authority is satisfied of the matters mentioned in section 10; second, a summary of the grounds on which the order is made, excluding information that's likely to prejudice national security; and third, the person's rights of review in relation to the order and any return permit that is made. Again, this recommendation was not implemented by the government in the bill that's been brought to the parliament. The bill does not require the temporary exclusion order to state the grounds on which the order is made so that someone who's given an exclusion order would not even know why, nor does it require the order to set out the person's right to review. Amendment (12) in the set before the House would implement this recommendation in full.

I digress to remind the House of the extreme nature of the power with which we are presently dealing. It is a power which Labor accepts should be part of the discretionary armoury, if I can put it like that, available to the government of Australia and its agencies in order to manage the return of Australians to Australia who have been engaged in terrorism activity overseas and who potentially pose some risk to the Australian community. Managing their return is an appropriate matter, but the power is such an extreme one. We can see that the extreme nature of the power has given rise to very serious doubts about the constitutionality of the power, as raised by people as eminent as Mr Arthur Moses, the president of the Law Council, or Professor Helen Irving from the University of Sydney. The government is clearly not even going to engage with that at all, because it's not providing to this parliament any evidence of the constitutionality of the legislation.

It is an extreme power with which we are dealing. The committee's recommendations go to making the exercise of the power appropriately subject to safeguards. It goes to making the exercise of the power more workable. Had the government accepted the recommendations that the committee made, it would have put in place some matters which to me and I think any fair-minded person would seem absolutely self-evident: that an Australian citizen who has been kept from returning to their country—because that is what this power is about—should know the reason why the exclusion order has been made.

I come to recommendation 7; that's the subject of very many of the amendments that are in the set—(10), (14), (17), (20), (22), (28) and (30). This seventh recommendation of the committee was to amend the bill to require a temporary exclusion order, in effect, so that a temporary exclusion order may only be issued by an issuing authority, such as a retired judge, and that an issuing authority must approve conditions in a return permit. Again, this would have brought the bill more in line with the UK legislation, which the government claimed—falsely—their bill is based on. Members opposite—including some of the members opposite who participated in the making of the recommendation, namely the member for Berowra and the member for Canning, the chair of the committee—have sought to mischaracterise this recommendation as it being a recommendation about judicial review. They have then falsely claimed that the government has implemented it in principle.

First, not to get too lawyerly about it, a retired judge is not a member of the judiciary. The clue is in the word retired. The reviewing authority would in fact be a member of the executive. Secondly, the government's bill does not create an issuing authority but would instead create a reviewing authority with extremely limited powers of review. Such an authority would not serve as a check on the power of the minister at all. (Time expired)

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