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senate vote 2019-07-25#1

Edited by mackay

on 2020-08-21 10:15:28


  • Business Consideration of Legislation
  • Business - Consideration of Legislation - Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 and another


  • <p class="speaker">Rex Patrick</p>
  • <p>I seek leave to move a motion relating to the consideration of the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 and a related bill.</p>
  • <p>Leave not granted.</p>
  • The same number of senators voted for and against the [motion]( introduced by SA Senator [Rex Patrick]( (Centre Alliance), which means it was unsuccessful.
  • The motion was to suspend the usual procedural rules - known as [standing orders]( - to let a vote happen.
  • ### Motion text
  • > *That so much of the standing orders be suspended as would prevent me moving a motion relating to the conduct of business, namely a motion relating to the consideration of the [Counter-Terrorism (Temporary Exclusion Orders) Bill 2019]( and a related bill.*
  • <p class="speaker">Penny Wong</p>
  • <p>The Leader of the Government in the Senate is entitled to deny leave, but I would make the point that there have been many occasions on which he and the Manager of Government Business in the Senate have moved motions in this chamber on the basis that they have been provided to the Clerk, but many senators have not yet received them. The leader of the government saying he hasn't seen it because his manager hasn't provided it to him is really not a basis to deny leave.</p>
  • <p class="speaker">Scott Ryan</p>
  • <p>Leave is a courtesy granted by each individual senator. There is no need for the basis or the reason for it being denied or otherwise to be explained. I appreciate the point you have made, Senator Wong. Senator Patrick, there are a couple of options here. You can move to suspend. You can give the government time to look at it. You can seek leave to move a motion at any time if leave is granted later. I call you now with those options before you.</p>
  • <p class="speaker">Rex Patrick</p>
  • <p>Pursuant to contingent notice of motion, I move:</p>
  • <p class="italic">That so much of the standing orders be suspended as would prevent me moving a motion relating to the conduct of business, namely a motion relating to the consideration of the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 and a related bill.</p>
  • <p>There has been considerable doubt in respect of the constitutionality of this bill that the Senate is considering. The constitutionality of the measures contained in the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 effectively providing for the temporary exclusion of Australian citizens from their own country remains highly uncertain. In 1988 the High Court struck down a law that imposed an immigration clearance fee on all persons, including citizens arriving in Australia by air. The unanimous decision of the court confirmed that:</p>
  • <p class="italic">&#8230; the right of Australian citizens to enter the country is not qualified by any law imposing a need to obtain a licence or 'clearance' from the executive &#8230;</p>
  • <p>Entry also cannot depend on holding a passport. There is no unqualified right to a passport, but legal advice to the government has long been to the effect that an Australian citizen cannot lawfully be denied entry even without a passport.</p>
  • <p>In the 1960s the Australian government adopted stalling techniques to prevent Australian journalist Wilfred Burchett from returning. Burchett was a communist living overseas and was strictly condemned by the government as a traitor. He was repeatedly denied access to a passport. However, cabinet records released by the National Archives show that the government was well aware, on advice from the Attorney-General's Department, that Burchett could not lawfully be kept out of Australia. That advice was kept secret for more than 30 years. That's a bit of history, but the constitutional uncertainty about this bill is very current.</p>
  • <p>We've had the President of the Law Council raising concerns about this. We have had Professor Helen Irving also raising concerns about this, but I can take you to the bill itself. If we go to section 30 of the bill, severability, it says, 'If section 14 is not a valid law of the Commonwealth'&#8212;you've got a contingency in here in the event that this is not constitutional. It's not me that's saying this, it's the government saying that this may not be constitutional. If this bill turns out not to be constitutional, you're going to remove the review right. We're talking about people&#8212;</p>
  • <p class="speaker">Penny Wong</p>
  • <p>It's conditional legislation.</p>
  • <p class="speaker">Rex Patrick</p>
  • <p>Yes, conditional legislation&#8212;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 <i>Odgers</i>if you care to read that over the weekend, you might learn a little bit about legal professional privilege&#8212;but, if there's any doubt about that, I refer you to Egan v Chadwick. The New South Wales Court of Appeal&#8212;I'm sure Senator Keneally will tell you all about it, because I think she was there at the time&#8212;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.</p>
  • <p>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.</p>
  • <p>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. <i>(Time expired)</i></p>
  • <p class="speaker">Mathias Cormann</p>
  • <p>The government will be opposing this suspension. The matters that Senator Patrick has raised in his contribution are appropriately dealt with in the context of the debate on legislation, which is now delayed because of the steps that he has taken. This is government business time. This is a time for the government to bring on legislation. This is very important legislation. Let's remind ourselves what this is about. This is about making sure that the government of Australia has the capacity to appropriately manage risk in relation to Australians who have decided to fight as foreign terrorist fighters in overseas battle zones. The number one responsibility of the Australian government here is to keep the Australian community safe.</p>
  • <p>I completely respect that as part of the consideration of this legislation there were matters that Senator Patrick raised and that the shadow Attorney-General, Mr Dreyfus, sought to pursue in the House of Representatives. Then, after the House of Representatives decided to reject his views and reject the amendments he put forward, the Labor Party voted in favour of the bill as a whole. All of these matters that Senator Patrick just raised will be appropriately dealt with in the course of the debate on the legislation. To seek to essentially procedurally derail the proper consideration of the government's agenda is not the appropriate way forward.</p>
  • <p class="speaker">Rex Patrick</p>
  • <p>I rise on a point of order, Madam Deputy President. The motion does not seek to delay. It seeks to have an order for the production&#8212;</p>
  • <p class="speaker">Sue Lines</p>
  • <p>That's not a point of order, Senator Patrick. That's a debating point.</p>
  • <p class="speaker">Rex Patrick</p>
  • <p>I'm just correcting the basis of the motion&#8212;</p>
  • <p class="speaker">Sue Lines</p>
  • <p>I'm asking you to resume your seat.</p>
  • <p class="speaker">Mathias Cormann</p>
  • <p>Right now, if the procedural step that Senator Patrick just took had not been taken, we would be dealing with the second reading debate on what is a very important piece of legislation to keep the Australian community safe. We would be going into the committee stage in consideration of this bill. During that committee consideration stage, it is of course open to Senator Patrick to ask questions of the minister dealing with the legislation to satisfy himself in relation to all of the issues he's concerned about. This is not the way to deal with these matters and it is preventing the government from properly pursuing its legislative agenda consistent with its business program here in the Senate. On that basis, the government can't agree to it.</p>
  • <p class="speaker">Kristina Keneally</p>
  • <p>Of course the government should release the Solicitor-General's advice on the temporary exclusion order legislation. Of course they should. It's not just Senator Patrick who thinks they should. It's not just the Australian Labor Party that thinks they should. The Law Council of Australia says they should. In fact, it was the Parliamentary Joint Committee on Intelligence and Security, chaired by Liberal member Andrew Hastie and dominated by Liberal Party members, that made a recommendation that the government should release the Solicitor-General's advice and prove that this legislation is constitutional. In voting against this motion today, the government is voting against the recommendation made by its own Liberal dominated committee, with its own Liberal chair. Senators in this place&#8212;Senator Abetz, Senator Stokes and Senator Fawcett&#8212;put their names to a recommendation that called on the government to do exactly what Senator Patrick's motion is calling on the government to do here today.</p>
  • <p>Let's make no mistake about this. This is no small ask. This is no niggling request from Senator Patrick. This is, in fact, the very question that Australians want the answer to from this government, because Australians, this parliament, and, indeed, the Australian Labor Party want a temporary exclusion order scheme that works, that keeps Australians safe and that is constitutionally valid and will withstand a High Court challenge. It is no good this parliament passing legislation if that legislation gets thrown out by the High Court and Australians are left less safe than they would be had this legislation not passed. That is a farcical situation and yet it is the one the government is continuing to contemplate and leave in doubt.</p>
  • <p>Let me make clear that Labor will be doing a number of things in relation to Senator Patrick's motion. I advise the Senate that, if standing orders are suspended so that Senator Patrick can move his motion, I will move an amendment to paragraph (a) so that the motion reads, 'There be laid on the table by 11 am today by the minister.' I also advise that, because the opposition do not intend for this legislation to be delayed by this parliament, I will ask for the question to be divided so the opposition can support paragraph (a) and oppose paragraph (b).</p>
  • <p>Labor have always supported the intent of the temporary exclusion order legislation. We supported it in the April report of the Parliamentary Joint Committee on Intelligence and Security. We supported the 18 substantive recommendations put forward by that Liberal dominated committee. We, in fact, are the party that have been consistent on the temporary exclusion order legislation. The flip-flopping has happened over there, on the government side, because you have Andrew Hastie, Julian Leeser, Senator Abetz, Senator Stoker and Senator Fawcett who have all put their names, and the Liberal Party's position, behind those 18 recommendations.</p>
  • <p>And what has the government done? It has rejected four of those recommendations in whole, it has rejected six of them in part and it has completely ignored one. And the one it has completely ignored is the subject of this motion here today. It has completely ignored the call from the Liberal-dominated Parliamentary Joint Committee on Intelligence and Security to produce advice from the Solicitor-General that shows that this legislation is constitutional.</p>
  • <p>It is farcical for the government to say that they can't produce it, because they'll be waiving privilege. In fact, if they even talk about the content of the Solicitor-General's advice, they are waiving privilege. And when do they do that? They do it all the time. They do it every time they talk about the medevac legislation. Then they talk all about the content of the Solicitor-General's advice; they're more than happy to put it out there for the public to see. But when it comes to a fundamental question on this legislation, which is designed to keep Australians safe from terrorists, from foreign fighters, then this government&#8212;well, they just go weak. They cannot produce, for the parliament or the Australian public, the advice from the Solicitor-General that shows that their approach&#8212;which, as Senator McAllister has pointed out, is four years late, because the UK parliament did this very same thing in 2015&#8212;on this bill is constitutional.</p>
  • <p>We will support this legislation because we want to see Australians safe. But we put on the record that we have concerns, and the government has yet to allay them, as to whether this legislation is constitutional. <i>(Time expired)</i></p>
  • <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>