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senate vote 2019-07-25#11

Edited by mackay

on 2019-08-22 15:29:22

Title

  • Bills — Counter-Terrorism (Temporary Exclusion Orders) Bill 2019, Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Bill 2019; in Committee
  • Counter-Terrorism (Temporary Exclusion Orders) Bill 2019, Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Bill 2019 - in Committee - Oversight

Description

  • <p class="speaker">Sue Lines</p>
  • <p>The committee is considering the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 and a related bill. The question is that the bills stand as printed.</p>
  • <p class="italic"><i>(Quorum formed)</i></p>
  • The majority voted against [amendments](https://www.openaustralia.org.au/senate/?gid=2019-07-25.236.1) introduced by SA Senator [Rex Patrick](https://theyvoteforyou.org.au/people/senate/sa/rex_patrick) (Centre Alliance), which means it failed.
  • ### What would the amendments do?
  • Senator Patrick [explained that](https://www.openaustralia.org.au/senate/?gid=2019-07-25.236.1):
  • > *The amendment will amend the Intelligence Services Act to remove most, although not all, the current legislative constraints on the scope of the [Parliamentary Joint Committee on Intelligence and Security]'s inquiries, and would allow the committee to review the operational performance of our intelligence agencies—a vital aspect of any effective scrutiny regime. The proposed amendment to the role of the PJCIS does retain existing prohibitions on:*
  • >
  • >> *… reviewing information provided by, or by an agency of, a foreign government where that government does not consent to the disclosure of the information; …*
  • >
  • > *It also retains the prohibition on conducting inquiries into individual complaints about the activities of designated intelligence and national security agencies, as those complaints are appropriately dealt with by the Inspector-General of Intelligence and Security.*
  • <p class="speaker">Rex Patrick</p>
  • <p>Minister, we were talking about reviews just prior to question time. It's clear that the review authority has all of those restrictions that you mentioned in your answer to me. Section 14 sets out the things that the review authority can consider. They are restrictive in some nature, and I understand your logic; you say that that process is to be quick. Leaving that alone, and noting the Administrative Decisions (Judicial Review) Act is carved out as a pathway, that leaves two methods by which to bring an action to the Federal Court. One is through section 39 of the Judiciary Act, and the other is through section 75 of the Constitution. If it were to go to a judicial review&#8212;so not the review authority&#8212;is it a matter considered to be in the original jurisdiction of the court as opposed to the appeals jurisdiction?</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>Yes.</p>
  • <p class="speaker">Rex Patrick</p>
  • <p>Minister, I gave you two choices. Is it in the original jurisdiction of the court, noting that there haven't been any sorts of judicial proceedings to that point, or is it in the appeals division of the court?</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>That was what I thought you'd asked me. It is in the original jurisdiction. If your questions were a little more concise, perhaps it would be a little easier to answer them.</p>
  • <p class="speaker">Rex Patrick</p>
  • <p>If it's in the original jurisdiction, Minister, of any court, you can bring in new evidence before the court. I listened to you, prior to the break, telling the chamber that you can't review on a question of fact. The whole point of the original jurisdiction is that you appeal and you have all facts laid out by way of affidavit and other methods to bring information before the court. Only in an appellant jurisdiction do you restrict the appeal to a point of law. So there's something not quite right here. Can you perhaps clear the air, please?</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>Senator Patrick, I would refer you to my previous extended answers on your very laborious questions going round and round on the same issue. But I can confirm again that there are no changes to the Evidence Act.</p>
  • <p class="speaker">Rex Patrick</p>
  • <p>Minister, we can stay here all night; there is no restriction on what's going to happen tonight. It's a simple question. I'm not asking about the Evidence Act; if you say that it is in the original jurisdiction, by definition that means you can introduce evidence to a court&#8212;which basically is a way of introducing facts to the court. So there's a difference in what you've told the Senate this morning, or previously, and what you're telling it now. There's an inconsistency in that. I'm just asking you to clarify that, please.</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>Senator Patrick, you can keep asking the same question over and over again in many creative ways, but the Evidence Act still applies, and if people have evidence they want to put that supports their case, of course they can do so.</p>
  • <p class="speaker">Rex Patrick</p>
  • <p>So that implies you can bring new facts to the table; that's the fundamental point of my question. You might recall I gave an example of a situation where perhaps a mistake had been made by ASIO. In order to initiate a TEO, we have got to have some sort of brief before the minister. My concern is that, at the next stage, the brief is not tested. You can shrug your shoulders, Minister, but there might be someone innocent caught up in this, and we need to be very respectful of the manner in which we treat citizens who may well have been subject to false intelligence. I don't mind if we take someone who is a terrorist and we deal with them as suggested by the act. My only concern here is that when ASIO presents information that is flawed in some way, it needs to be tested at some stage along the way. In the original jurisdiction of a court, that can be tested. You said that it's in the original jurisdiction but then you said it can't be appealed on a question of fact. So there's an inconsistency in your answer and I'm trying to get to that inconsistency. Can you please help me out, Minister?</p>
  • <p>I will move to section 30 of the bill. Section 30 does raise issues of constitutionality because it states:</p>
  • <p class="italic">If section 14 is not a valid law of the Commonwealth&#8212;</p>
  • <p>So there is some doubt as to whether it is constitutional, then&#8212;</p>
  • <p class="italic">(a) it is Parliament&#8217;s intention that this Act operate as if that 26 section had never been enacted; &#8230;</p>
  • <p>In effect, what that does is remove the review authority's role in this process. Is that the correct understanding of how that provision works?</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>Senator Patrick, the question to officials and me was not very clear in that sort of rather expanded question. Can you just be very clear about what your question actually is so I don't mislead you?</p>
  • <p class="speaker">Rex Patrick</p>
  • <p>Certainly, Minister. In the event that section 14 is found to be invalid in the act as it's constructed, does that mean that the review authority process no longer takes place?</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>Thank you for that clarification, Senator Patrick. That is clearly a hypothetical question which, as I've said, I'm not in a position to answer.</p>
  • <p class="speaker">Rex Patrick</p>
  • <p>Minister, it says, 'If section 14 is not a valid law of the Commonwealth.'</p>
  • <p class="speaker">Nick McKim</p>
  • <p>'If'! There's a hypothetical in your bill!</p>
  • <p class="speaker">Rex Patrick</p>
  • <p>There's a hypothetical in your bill, Minister&#8212;seriously! I'm trying to deal with that situation. It's the drafters that have proposed that possibility. I'm asking: what happens in the event of that possibility?</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>Thank you for that further clarification. The answer then would be, yes, that that is the impact of the section.</p>
  • <p class="speaker">Rex Patrick</p>
  • <p>Just to be clear, in those circumstances a TEO would then be issued without a review by a review authority. I presume that then means the only avenue of review remains the judicial review; is that correct?</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>Yes. That is correct.</p>
  • <p class="speaker">Rex Patrick</p>
  • <p>Has the Commonwealth considered, or does the advice that's been provided by the Solicitor-General go to, the constitutionality of having a decision made without any form of administrative review?</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>The government has clear advice that this legislation is constitutional.</p>
  • <p class="speaker">Nick McKim</p>
  • <p>Minister, I also have a question on matters relating to the review authority. I'm not talking about the judicial review here; I'm asking about the review authority. Can you confirm that the only decision that will be reviewed by the reviewing authority will be the making of a TEO? And can you confirm that that means that if the minister varies a TEO, that will not go to the reviewing authority?</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>I can confirm that the reviewing authority will provide independent oversight of the minister's decision to make a TEO against a person in that initial decision, and, immediately after making a TEO, the minister must refer the decision to that reviewing authority. If the reviewing authority finds that the minister's decision is unlawful, the TEO is taken to never have been made.</p>
  • <p class="speaker">Nick McKim</p>
  • <p>Thank you; that's answered the first part of my question. I'll just put the second part again: can you confirm that if the minister varies an existing TEO, that will not go to the reviewing authority? Is that correct?</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>Yes, that is correct. The variation is not subject.</p>
  • <p class="speaker">Nick McKim</p>
  • <p>What is the public policy reason for that?</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>Senator McKim, if you can indulge me, I'm just getting advice on that particular point and I will come back to you shortly&#8212;I've just had some clarification from the officials. The Minister cannot vary the TEO once it's been issued.</p>
  • <p class="speaker">Nick McKim</p>
  • <p>I appreciate that. So who can vary a TEO? Or can a TEO not be varied?</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>It cannot be varied. It can only be revoked.</p>
  • <p class="speaker">Kristina Keneally</p>
  • <p>If I may, perhaps to assist Senator McKim, perhaps this question does also go to return permits and the conditions that can be put on a return permit. Those can be varied&#8212;correct?</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>Yes.</p>
  • <p class="speaker">Kristina Keneally</p>
  • <p>To follow on from that&#8212;I think this is what Senator McKim may be trying to get to&#8212;the making or issuing of a return permit and the conditions upon it are not reviewed by the reviewing authority&#8212;is that correct?</p>
  • <p class="speaker">Linda Reynolds</p>
  • <p>That's correct.</p>
  • <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>