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

Under this bill, the minister is not even required to consider whether the subject of a TEO is a citizen, has residency or whether they are eligible for citizenship or residency in another country. But, if an Australian citizen who would be subject to a TEO is being deported to Australia, the minister must give that person a return permit which will allow them to return, but pre-entry and post-entry conditions can be attached to the permit. These conditions do not need to be individually justified by the minister, and noncompliance with the condition, whether justifiable or not, can also result in two years imprisonment.

Potential post-entry conditions are many and varied and may require the returnee to notify a specified person or body about their whereabouts, activities, employment and use of technology. These conditions can also be coupled with a control order that prohibits certain movements, associations and technologies. It's important to note that such restrictions to basic freedoms could socially exclude a returnee from family, from friends, from social support networks and, if applied arbitrarily or irresponsibly—which is certainly odds on under the current minister—could seriously impede the returnee's capacity to reintegrate with society and, potentially, deradicalise.

One of the pre-entry conditions that can be attached to a return permit—a permit which, by the way, can be revoked by the minister at any time—is that the Australian citizen must not return to Australia within 12 months of the return permit being issued. Both the power to exclude a person from returning or re-entering their home country for two years under a TEO and the power to prevent someone from re-entering their country for 12 months under a return permit appear to contravene article 12.4 of the International Covenant on Civil and Political Rights, the ICCPR, which Australia has ratified—and I quote from that section:

… No one shall be arbitrarily deprived of the right to enter his own country.

So here we are, once again, as we've done with our offshore detention regime, as we've done so often with legislation passed in the name of national security, abandoning the commitments that we've made in signing up to very significant international covenants and agreements.

Worse yet, despite the bill's statement of compatibility with human rights claiming that TEOs will not permanently exclude the subject of a TEO from entering Australia, there is absolutely nothing in this bill that will prevent the minister from issuing an indefinite series of TEOs against Australian citizens. In other words, they can issue a TEO for two years and then, on its expiry, they can simply issue another one for two years and another two years and another two years and another two years, ad infinitum—a lifetime ban on coming back to your own country.

I have to say, having returned from Manus Island only a few days ago, that, sadly, I'm all too familiar with Minister Dutton's predilection for arbitrary and indefinite imprisonment and sentences. Given that these orders can apply to a 14-year-old—a 14-year-old child!—I reckon I'm on pretty safe ground to suggest that these powers contravene article 31 of the UN Convention on the Rights of the Child, which Australia has also ratified. This international obligation is supported by a 1995 High Court judgement that found, 'The interests of the child must be given either the greatest weight or equal greatest weight with other considerations.' This bill patently fails to meet that test. I ask the Senate a question: how can legislation that bars an Australian child—a 14-year-old Australian child—from re-entering his or her own country, away from radical and extremist ideologies, back into a place where we can offer them supports and we can offer them the assistance they need to deradicalise, be in the best interests of the child?

It's one thing to contravene international agreements—this government does it all the time, and it makes their culpability worse by denying that they are doing it while in fact they are—but it is another thing to flagrantly disregard the Australian Constitution. The Law Society of New South Wales has expressed deep concern that this bill, if on its true construction it authorises the executive to impose punishment for criminal conduct, will collide with Chapter III of the Constitution. The New South Wales Law Society goes on to quote a finding of the Full Court of the Federal Court of Australia: 'It is a fundamental principle of the Australian Constitution, flowing from Chapter III, that the adjudication and punishment of criminal guilt for offences against the law of the Commonwealth is exclusively within the province of courts exercising the judicial power of the Commonwealth.' It says 'courts', not 'the minister'.

But this government either can't or won't understand the need for the separation of powers in this country. They don't understand the separation of church and state, so why would we assume they have any concern for the doctrine of the separation of powers? And the minister needs little more than suspicion to justify to this legislation's satisfaction placing these orders and penalties on Australian citizens. If you want to contest the minister's suspicions, well, you won't be able to. So much for the burden of proof, a cardinal principle of our system of justice.

This bill, as I said, undermines the rule of law. It does away with common law principles and it does away with procedural fairness. On procedure fairness, it denies people who are subject to an order or permit opportunities to dispute or test the evidence against them. No minister, particularly the minister we have now, should be allowed to set themselves up as judge and jury, but that's what this legislation does. On the exclusion of procedural fairness, I know that clause 26 provides explicitly:

The Minister is not required to observe any requirements of procedural fairness in exercising a power or performing a function under this Act.

'Not required to observe any requirements of procedural fairness'—that's what Australia has come to today.

This bill is another sorry and frightening example of government legislation, cheered on by the so-called opposition, showing why we need a charter of rights in this country. We are the only liberal democracy in the world that does not have some form of constitutionally enshrined or legislatively enshrined charter or bill of rights, and that is something the Australians Greens will continue to fight for. As the Immigration Advice and Rights Centre warned, this bill will undermine the value of holding Australian citizenship and create a second class of citizen with fewer rights and protections. One of the most fundamental rights that we all have in this place is our Australian citizenship. As citizens, the principle ought to be: we are all treated equally under the law. This bill walks away from that principle.

If people have committed a crime overseas, there is abundant legislation currently on the statute books to charge people in Australia with the crime for fighting with terrorist organisations overseas. They should be brought to this country, they should be charged and, if found guilty by our independent judicial system, they should be sentenced appropriately. That is the way that we make the world safer. We shouldn't be washing our hands of our people who make the terrible decision to go overseas and engage in these activities. We should not be washing our hands of responsibility for them, but the principle behind this bill is that we're just happy to leave them over there to keep causing trouble. What sort of international citizens are we becoming? We should take responsibility for the actions of our people. We should bring them here, into this country, and if they've done something wrong or unlawful, they should face the full weight of the law, like all the rest of us would in that situation. But, no, the major parties are colluding to wash their hands of these troubles.

Several stakeholders have questioned why this bill is even needed, given it doesn't appear to cover anything not already captured by existing counterterrorism powers. Now they are right about that, but I want to point out this: this bill creates replica powers free of accountability, free of rigour and unencumbered by the rule of law. This is draconian legislation, and I want to ask members of the Australian Labor Party: what would it take for you to actually stand up and oppose the government on a matter of national security? How bad would things actually need to get before the Labor Party discovered, or rediscovered, its spine? What would actually constitute a step too far for the Australian Labor Party? How many rights would have to be curtailed before the Labor Party awake from the stupor that they have found themselves in on these issues for nearly two decades? And when will the Labor Party stop kowtowing to this bullying government, or, worse still, trying to outflank this government from the right?

The people of Australia actually can no longer rely on the Labor Party to stand up for their rights. They want the Australian Labor Party to do more than what they're doing on this bill, which is to point out all the flaws in it and to then vote with the government to pass it. We're in a climate emergency; economic inequality is rampant. There are full-blown authoritarians holding government office in this country, and on all of these issues the ALP has abandoned the field. When the people of Australia need someone to fight for their rights in this place, they can turn to the Australian Greens. We will do the job of an opposition, even if the Labor Party has vacated the field. All the evidence, since the election, has shown that the Greens are going to have to stand up and fight for our rights in this country, and do it without the Labor Party. So be it. So we will. We'll fight for human rights. We'll fight for civil rights. We'll fight for the rights of children. We'll fight for the freedoms and the liberties that our country, in its recent history, has fought for in wars. We'll fight to protect our climate. We'll stand with the Australian people in their fight for justice and a fair go. This is a shocking piece of legislation. It undermines the rule of law. It sets Minister Dutton up as judge and jury. And it's been delivered by this beloved-of-the-major-parties bipartisanship on national security. The collusion that occurs between the major parties on national security issues behind the closed doors of the Joint Standing Committee on Intelligence and Security is marching this country down the road to becoming a police state. We the Greens will call this out in every single time it happens because we are losing our rights and our freedoms as people, and the major parties are colluding to continue down that extremely dangerous path.

I don't want to live in a police state. I don't want to live in a surveillance state. I cherish my rights and freedoms too much to go quietly down that path, while the major parties in this place stitch up these laws behind the closed doors of the Joint Standing Committee on Intelligence and Security. That committee needs reform. That committee needs crossbench voices, that committee needs the disinfectant of sunlight, and we have to break the bipartisanship on national security that has been and tragically, I predict, will continue to be so damaging for rights and freedoms in this country.