Nick McKim (Tasmania, Australian Greens) Share this | Hansard source

It's no surprise that Labor's going to support this legislation—no surprise at all. Once again, they are in lock step with this government in eroding some of the most crucial and critical rights that we are lucky enough to enjoy in this country. Make no mistake: this bill is a direct response to a case that is currently before the High Court of Australia. It's not a case that has just finished being heard in the High Court; this bill is in response to a case currently in the High Court. That's not me saying this; this is me interpreting the explanatory memorandum, from which I will now quote:

This amendment is in response to current proceedings in the High Court of Australia, Graham and Te Puia, in which the validity of section 503A of the Act is being challenged.

Here we are, in the Commonwealth Parliament of Australia, bringing in legislation that is in direct response to a case that's currently being heard by the High Court. Separation of powers, anyone? Anyone? Separation of powers? Crickets, absolute crickets!

Make no mistake, this bill seeks to pre-empt and negate a High Court decision in the event that that decision is in favour of the plaintiffs. That's what this is about. The reason we have this bill, and the reason it's so disappointing that Labor is in zombie lock step with the government on this legislation, is that the government doesn't like it when the courts get to actually apply justice in this country and when the courts get to exercise control over migration matters in this country. It is a disgrace that we are even debating this bill, and it's a disgrace that the Labor Party has indicated support with a bunch of weasel words which, with the greatest of respect, mean absolutely nothing whatsoever.

Clearly, the Liberal and Labor parties in this place would prefer it if the courts stayed out of the government's business as it relates to migration and visas, and just let the minister exercise his discretion and his will. When you look at the figures of the number of decisions this minister has made that have been overturned by the AAT, you can get some idea as to why the Liberal Party is so keen to keep the courts away. It doesn't explain, unfortunately, why it is that the Labor Party is backing this legislation.

Let's not forget the infamous statement of former immigration minister Philip Ruddock, who said that the courts ought not be involved in review of migration matters because the judiciary is, and I quote, 'ill-suited' to deal with these matters. Well, no, the judiciary is not ill-suited to deal with these matters. This is about the rule of law—one of the absolute foundations of any liberal democracy in the world. This is about a separation of powers, which is absolutely critical to allowing the courts to do their job. Section 503A was introduced by way of the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1998. What it does is provide for the protection and non-disclosure of certain information provided to a migration officer by a law enforcement or intelligence agency on the condition that it be treated as confidential information. The minister, after consulting the relevant agency, may authorise disclosure of the information to a relevant court or tribunal.

Section 503A(5), however, provides that if the information is disclosed to a tribunal, the tribunal cannot divulge that information. In other words, the tribunal cannot divulge that information to the person who is applying for the visa. Of course, the inability of the person who is applying for the visa to question this information means that that person whose character is being impugned will probably never even know why their character is being impugned. That runs counter to the rule of natural justice if you ask the Australian Greens. The Law Council of Australia submitted:

The proposed new section 503E would remove the right of an individual to have their cancellations or refusals reconsidered validly allowing them to access and comment on material held by the minister or delegate prior to their visa being cancelled or refused on the basis of that material.

We are not here today to argue that there are not good policy reasons why people who have engaged in unacceptable conduct should not be able to remain in or enter Australia, but people have a right to respond to accusations against them, and in doing so they have a right to be in possession of all the information that was in the possession of the person making those accusations or decisions. So this bill also has a retrospective application in that the provisions of the bill will apply to all decisions made prior to the day after royal assent—that is, they will apply to all cancellation and refusal decisions which relied on section 503A information. Retrospectivity, as a general comment, makes the law less certain and less reliable.

Some years back Canada dealt with a similar problem, with the Supreme Court over there striking down a provision preventing visa holders from seeing and responding to protected information. In that decision, Chief Justice McLachlin—with whom the entire court agreed—accepted, as one of the most fundamental responsibilities of a government, ensuring the security of its citizens. This means sometimes the government must—I quote from Chief Justice McLachlin—'act on information it cannot disclose and detain people who threaten national security'. However, in a constitutional democracy, Chief Justice McLachlin continued, 'governments must act accountably and in conformity with the Constitution and the rights and liberties it guarantees.' The tension that the Chief Justice described as lying at the heart of modern democratic governance must be resolved to respect 'the imperatives both of security and of accountable constitutional governance'.

In Australia, in 2007, the visa of Dr Mohamed Haneef was cancelled on character grounds, with some of the material provided to the then minister protected under 503A. Refugee Legal, in their submission to the Legal and Constitutional Affairs Committee inquiry into this bill, suggested that this amendment is 'an encroachment on the jurisdiction of the judiciary by the executive and legislature, and is inconsistent with the doctrine of the separation of powers'. The Australian Greens couldn't agree more with Refugee Legal.

I want to now draw the attention of the Senate to a quote from Chief Justice Gleeson:

It is self-evident that the exercise of jurisdiction such as this—

judicial review—

will, from time to time, frustrate ambition, curtail power, invalidate legislation, and fetter administrative action. As the guardian of the Constitution, the High Court from time to time disappoints the ambitions of legislators and governments. This is part of our system of checks and balances. People who exercise political power, and claim to represent the will of the people, do not like being checked or balanced.

Of course, that's the nub of it right there. The Liberal Party and the National Party—the coalition parties in government—do not like being checked or balanced by our courts. The Labor Party—knowing that it's highly likely that after the next election they will form a government—are preparing themselves to adopt the same position. And why are they doing that? Because the Labor Party, when in government, doesn't like being checked or balanced either. There's no other explanation for Labor's craven capitulation on this piece of legislation. I'll tell you what—if the light on the hill hasn't gone out, it's flickering ever so faintly as we stand here today. This legislation is an attack on the separation of powers and it's an attack on the rule of law in this country. It continues the ongoing erosion of our rights, our freedoms and our liberties that goes on week after week, month after month, year after year in this place, with the Liberals, the Nationals and Labor in zombie lock step as they continue to erode some of the rights and freedoms that many Australians have fought and, tragically, died for throughout our country's history.

This is why we need a charter of rights in this country—to codify our rights, to enshrine our rights and to make it more difficult for governments and parliaments to take those rights away from the Australian people. If it's good enough to go to war to fight for these rights, it's good enough to stand up in this place and defend them. And the Australian Greens will defend them. We'll campaign strongly for a charter of rights in this country, because they are our rights. They're the rights of the Australian people, and they shouldn't be taken away lightly. Yet, day after day, week after week, month after month, the establishment parties in this place collude to trample on the rights of the Australian people. We're going to call it out every time we see it. We're going to campaign for a charter of rights, and we won't rest until we have codified and enshrined the rights that so many Australians take for granted but that so many Australians are prepared to take action to fight to defend. We've seen it throughout our country's history, and we will see it again while ever the establishment political parties in this place work together, as they are today, to trample roughshod over those rights.