Rex Patrick (SA, Centre Alliance) Share this | Hansard source

Yes, conditional legislation—thank you, Senator Wong. This is simply not acceptable. I know the government is of the view that you do not have to provide legal advice. That view is inconsistent with the laws of this country, and I refer you to Odgersif you care to read that over the weekend, you might learn a little bit about legal professional privilege—but, if there's any doubt about that, I refer you to Egan v Chadwick. The New South Wales Court of Appeal—I'm sure Senator Keneally will tell you all about it, because I think she was there at the time—said that the parliament has a right to see the legal advice upon which the government is making decisions. An essential part of the oversight role of the parliament is to make sure we fully understand what it is that you are presenting. In this case it's critically important. This is a matter of whether or not this bill is constitutional.

I'll tell you in my second reading speech that we support the principles of the bill, but we don't want to have a situation where the first time a TEO is issued the matter ends up in the High Court. That's not the way we should be making laws. It's not good law unless we are satisfied as to its constitutionality. Some of the constitutional matters of concern relate to whether or not you can prohibit an Australian returning to Australia, and I think it's relatively clear that you can't stop an Australian coming to this country. That was the unanimous ruling of the High Court in 1988.

The second concern is the government's own concern, because it's in their bill, as to whether or not the review that they have established is lawful and whether or not they're actually using executive power to in some way constrain someone. When there's a control order, it has to be a judge that issues the control order. This is a step in a direction where ministers can in effect provide punitive action against Australian citizens without a court. We need to see that advice. (Time expired)