Penny Wright (SA, Australian Greens) Share this | Hansard source

I agree with you: it is the role of courts to determine the meaning of legislation in a particular case when that case goes to the court. However, my view is that it is the responsibility and accountability of parliament to take responsibility for the language that it chooses to enact in legislation which will potentially affect people's lives significantly. It is certainly an accepted principle of law that it is desirable to have clarity in legislation so that a person who is going about their business within the community has some understanding about what behaviour may or may not be caught by what, in this case, are significant provisions which have the effect of potentially destroying someone's livelihood, in the sense that they may not be able to work, there may be an order that they are not able to attend their place of work, and so on. Always, as much certainty as possible is desirable so that people do not have to 'suck it and see'—they do not have to wait and see if they are caught up by behaviour. When there is broad, ordinary language that is encompassed in ordinary meaning—which could be extremely broad; 'support' is a very broad word—I put it to you, Attorney, that it is reasonable to ask about hypothetical examples. I think the requirement for certainty would be directly proportional to the consequences of the legislation or the provisions that are being enacted—and these are significant provisions with a significant effect on the human rights of Australian citizens. That is why I have been asking the question, but I accept that you are not going to give any further answers on that.

I come to the response that you gave to my request for more clarity on the definition of the class of Australian persons. I do not have the explanatory memorandum in front of me, so I do not have the wording here, but I noted that paragraph 9(1A)(a) has defined or indicated that this will not be a class by reference to ethnicity, religious or political belief but will be a class of persons that has to be involved in activity that is prejudicial to security. If I have that wrong, I would appreciate you correcting me on that.

In that case, I am still interested in asking the question: how would that provision operate in context? How would it be possible to identify a class of persons in a foreign country that is involved in a way that is prejudicial to security? How will they be identified? I can envisage various scenarios where—even if people are in a particular geographical area, perhaps dressed in certain clothing, perhaps holding certain flags that might suggest that they are associated with a terrorist organisation—it may still be possible that some of those people are there subject to coercion or for some other reason. I am interested in the parameters again, in how that will operate contextually.