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

To make it worse, the government's amendments give rise to an additional ground of constitutional invalidity. This is a change that the government is itself making between the bill in the form in which it was brought to this place in February and the bill in the form in which it now takes and is before the parliament. That the bill has changed gives rise to an additional ground of constitutional invalidity.

We know from the Law Council and from others that the bill is at serious risk of being unconstitutional because it infringes the constitutional right of abode. In its half-baked and sloppy attempt to implement recommendation 7 'in principle'—because that's the government claim—the government has created an additional constitutional problem because, in one view, the 'reviewing authority', who would be a member of the executive, is purporting to exercise powers that the Constitution vests exclusively in the judiciary. That contravenes the separation of powers, a fundamental principle that this Minister for Home Affairs seems to have little time for. Most of Labor's amendments go to addressing this recommendation—for instance, replacing every use of the words 'reviewing authority' with the words 'issuing authority'. Some of the key substantive amendments that go to this recommendation are amendments (10), (14), (17), (20), (22), (28) and (30).

To implement another part of recommendation 7, amendment (21) would allow the minister to issue an interim temporary exclusion order in urgent circumstances. In those cases, the minister would then have to obtain the approval of the issuing authority as soon as practicable. Again, this was simply a practical suggestion that the committee had put forward and that the government, without explanation, is rejecting.

Recommendation 10 was a very simple recommendation. The committee recommended that the bill be amended to clarify that a person may seek judicial review of a decision of the minister to grant or refuse an application for a return permit. Incredibly, this was rejected by the government on the ground that it was unnecessary. The government has argued it's unnecessary to expressly provide for judicial review in these circumstances by pointing to the fact that a minister must accept an application for a return permit, but again that is not true. Under the bill as presented to this parliament, the minister must give a return permit if a person has applied to the minister in the prescribed form and manner or the person is to be or is being deported to Australia. Implicitly, the minister may refuse to give a return permit if he does not believe the person has applied in an appropriate manner, and the minister may or may not be correct about that. Amendment (24) makes it clear that there are judicial review rights in relation to a decision to grant or refuse an application for a return. This is pretty basic stuff. As with all of the PJCIS recommendations, it would make the bill clearer and more workable, and the government's rejection of this one is inexplicable.

I come to recommendation 11. The committee's 11th recommendation would see the bill amended so that, in any prosecution for a breach of an offence provision under the bill, the prosecution must prove that the defendant had knowledge of the existence of the temporary exclusion order or of the relevant return permit condition as applicable. As a general principle—and I would hope that every single member of this place would absolutely subscribe to this general principle—people should not be prosecuted for breaching an order they are unaware of, especially in circumstances where such an order can be issued on the basis of the minister's belief or satisfaction of certain matters and breach of the order can result in a prison sentence. The government has entirely failed to present a coherent argument as to why that general principle—which, I say again, I would sincerely hope every member of the parliament would agree to—should not be adhered to in these circumstances. While it's true that a person may not be aware of an exclusion order at the time it's issued—because, for example, the person's in a remote location or the government doesn't know where the person is—any such person who tries to return to Australia would presumably be made aware of the order when he or she tries to board a plane, for example. Is the government really saying that a person who is subject to one of these temporary exclusion orders would not be flagged on an airline's computer system? The government has to explain why, in a practical sense, requiring the prosecution to prove actual knowledge of the existence of the order is unworkable; it is not enough just to assert it. That's what the government did in its submission to the intelligence and security committee, and no member of that bipartisan committee, Labor or Liberal, was convinced. That's why the committee unanimously made recommendation 11, which the government is rejecting. Amendment (31) would implement that recommendation of the committee. (Time expired)

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