David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Hansard source

I move amendment (1) on sheet 7740 standing in my name:

(1) Schedule 1, page 3 (lines 20 to 22), omit subsection 198AHA(3), substitute:

  (3A)   To avoid doubt, subsection (2):

  (a)   is intended to ensure that the Commonwealth has capacity and authority to take action, without otherwise affecting the lawfulness of that action; and

  (b)   does not authorise or empower an individual acting on behalf of the Commonwealth to take, or cause to be taken, any action outside Australia that, if the action was taken in Australia, would contravene a law of the Commonwealth, a State or a Territory.

[limitation to lawful action]

Last year the government hastily drafted a national security bill which Labor supported. The bill provided an immunity to officers involved in special intelligence operations. I pointed out that the immunity would apply even if the officers engaged in torture. The government said it had no intention of authorising torture, but it nonetheless eventually amended the national security bill so that the immunity did not cover torture. This year, the government has hastily drafted an immigration bill which Labor supports. The bill states that the Commonwealth may 'take, or cause to be taken, any action' in relation to a regional processing arrangement or the regional processing functions of a country. The bill fails to rule out action that would contravene a law of the Commonwealth, a state or a territory if the action were done in Australia. The government may have no intention for this bill to authorise action that would constitute an offence here, but the stated intentions of the current government and the law of the land are two different things. So my amendment, I propose, would ensure that the bill does not authorise action that would contravene Australian law if the action were done in Australia. The amendment is modest. It has no effect on the law of the land as it exists here and now; it only affects the new section to be enacted by the law, proposed section 198AHA. My amendment states that the new section:

… does not authorise or empower an individual … to take … any action outside Australia that, if the action was taken in Australia, would contravene a law …

I acknowledge that the actions authorised by the bill must be actions in relation to a regional processing arrangement or regional processing functions, but this does not limit authorised actions to actions that would be legal in Australia. A regional processing arrangement is simply defined as:

… an arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding.

All that is said about regional processing functions is that they include:

… the implementation of any law or policy, or the taking of any action, by a country in connection with the role of the country as a regional processing country, whether the implementation or the taking of action occurs in that country or another country.

My amendment I consider to be necessary and prudent, and I seek the support of the minister and my colleagues.