Gary Humphries (ACT, Liberal Party, Shadow Parliamentary Secretary for Defence Materiel) Share this | Hansard source

It is my pleasure to rise to speak on the Maritime Powers Bill 2012 and to indicate that I see in this legislation the reinforcement of a pattern of behaviour on the part of the Labor government, a government which, all too often, has set out with a grand vision of reforming a particular area of the law and an intention to make clear what was characterised by a series of disparate and sometimes disjunctive pieces of legislation and bring it all forward. That is the intention. To cite some recent examples, it was the intention of the privacy legislation amendments, it was the intention of the human rights legislation that was discussed recently and it was the intention of the Maritime Powers Bill in each case to bring together, codify and make clear the position with respect to that particular area of law in a comprehensive way.

But I regret to say that, like the privacy bill and like the human rights bill, the Maritime Powers Bill is grand in conception but in some respects fails to deliver what it promises—although I would not go so far as to describe the Maritime Powers Bill as being as grand a fiasco as those other two pieces of legislation. If I might cut in there, those of us who were involved in the inquiry conducted by the Senate Legal and Constitutional Affairs Legislation Committee into that piece of legislation know that almost every witness who came before the committee from every sector criticised the legislation as being unclear, as muddying the waters, as creating confusion and as leaving so many questions unresolved that it caused considerable concern in the broader community, who rely on that legislation.

In this case the level of confusion is not as severe or as widespread, but it is deficient in one very key respect, and I think it is impossible for this chamber to walk past this issue without it being comprehensively settled and resolved. The question is, very simply, whether this legislation preserves the ability of the Commonwealth, through those who operate our naval vessels and other vessels on the sea, to exercise a power to turn back vessels that are in or approaching Australian territorial waters. That is the critical question. It is a matter on which there has been considerable public policy debate in recent years. It is a matter where, in the past at least, public policy has been applied to exercise such a power to ensure that boats have been turned around and sent away. This is not a moot question; it is a question of what powers the Commonwealth actually might exercise in a maritime setting. It is reprehensible that the Commonwealth government has brought to the Senate for passage a piece of legislation, in the form of the Maritime Powers Bill, without a clear answer to the question: does the bill preserve the power of the Commonwealth, the prerogative power of the Crown, to turn boats around?

I say that that is a question which is not answered because, when the Senate Legal and Constitutional Affairs Legislation Committee considered the legislation, it was unable to obtain a clear answer from officers of the Attorney-General's Department as to whether that power was preserved. To, I think not unfairly, paraphrase those who gave evidence before the committee, there was a suggestion that perhaps the prerogative power was still preserved in the legislation.

I asked specifically where I could find it referred to in the legislation and I was told that it was not necessarily contained in the words of the legislation, that in fact the power as a prerogative power of the Crown is a power which inherently lies with a nation state to be able to exercise with respect to the regulation of its borders. I thought that was a good answer, but not a complete answer. What the Maritime Powers Bill and its sister legislation, the Maritime Powers (Consequential Amendments) Bill, purport to do is to codify the powers of the Commonwealth that it might exercise in a maritime setting; to describe comprehensively what a person exercising such powers may or may not do—what the captain of a naval vessel or a Customs vessel, or some such person, might do—in the setting where they were confronted with a vessel attempting unlawfully to enter Australian waters. They might wish not to allow that to occur, and might wish to know whether the powers were there for them to turn that boat back. They might understandably make reference to, either personally or through some commanding authority back on the mainland, the place where such powers are enumerated and codified—namely, the Maritime Powers Act, as it would then be.

If they looked in that place—if this legislation were to pass in the form that is before the Senate today—they would not find such a power. There is not in the legislation anywhere a clear description of the power of the Commonwealth or its servants and agents to be able to turn back boats, in the circumstances where indeed Australian maritime powers have in the past turned back boats—in circumstances that were considered appropriate—in ensuring that unauthorised arrivals did not reach Australia's shores.

The answers to those questions to officers of the department were, with great respect to them, unclear and unconvincing. But I would be very assured if the minister at the table were able to assure the Senate categorically that this legislation does preserve the power of the Commonwealth to turn back boats in circumstances where that course of action is warranted. If that assurance can be given to us, I think it would go a long way towards mollifying the concerns we have had about this legislation.

As a belts-and-braces matter, however, I think we would proceed with the amendment which is before the Senate at the moment. Senator Brandis is moving it to make it clear that that power does rest with this legislation, which of course is meant to be a comprehensive enumeration of the powers of the Commonwealth in a maritime setting.

Why do we talk about this? Why is this a consideration, given that it has not been a power that has been exercised, apparently, for some time? The answer of course is that it must be available as a possible response if the circumstances warrant that being the case. No-one is suggesting that it would be an everyday occurrence for Australian naval vessels to turn boats around on the high seas. It would not be an everyday occurrence. We would hope it would not be an everyday occurrence, and it was not an everyday occurrence during the years of the previous government when this power was indeed exercised. Obviously, it is a power which is to be exercised only in very special circumstances. But it is important to have such a power available in the armoury of responses by Australia as a nation state to the circumstances where people choose to make journeys to this country and seek to enter its territorial waters, and for which there is no lawful reason for that to occur.

The suggestion that officers of the Royal Australian Navy have said that the exercise of such power either is inappropriate or not legally possible is a suggestion which has no foundation. I have sat in meetings of the estimates committee—as I know Senator Feeney, the parliamentary secretary at the table, has—and I have heard officers at the table answer questions about the circumstances in which such powers might be exercised. It is true that they have said that it is very dangerous to exercise those powers, that there are risks associated with the exercise of those powers and that there are all sorts of reasons why it needs to be done with great care, but I have heard nobody in that setting say either that the power does not and should not exist or that it could never be exercised. The fact that such a power until now has existed, does exist and might be exercised in circumstances where it is in Australia's interest to do so in my view means that we should be careful today to make sure that this legislation does not pass through the Senate without that power being preserved.

If it is the government's view that the power should be preserved, it may not wish to exercise the power. I gather that, although the previous Prime Minister thought that it should, the present Prime Minister does not—fair enough. Whatever the views of the government of the day, it would be unfortunate if the power were to be wiped from the statute books or from the common law by virtue of the passing of a piece of legislation which had the effect of repealing the power or removing the power from Australian authorities. Obviously, if the Australian people see fit at an election later this year to have a new government—