Additional Comments by Senator Linda Kirk
Constitutional Validity
1.1
I have
significant concerns about the constitutional validity of aspects of the
preventative detention and control order provisions of the Bill. If these are not addressed, there is considerable
potential for a successful constitutional challenge to central features of the
Bill, undermining its national security objectives.
1.2
Witnesses from
the Attorney-General’s Department assured the Committee they had received
advice from the Solicitor-General and Chief General Counsel for the
Commonwealth that the Bill is consistent with the Constitution, particularly
the requirements of Chapter III. They
were not however prepared to provide this advice to the Committee.
1.3
Numerous other
witnesses expressed significant doubts about the consistency of sections of the
control order and preventative detention provisions with the requirements of
Chapter III. These can be summarised as
follows:
Control Orders – Division 104
1.4
Witnesses from
the Attorney-General’s Department submitted that the power to issue control
orders is a judicial function, due to its potentially punitive operation, and
is therefore appropriate to exercise by Chapter III courts in the exercise of
the judicial power of the Commonwealth.
1.5
According to the
Law Council of Australia and other witnesses who appeared before the Committee,
in giving the Federal Court, Family Court and Federal Magistrates Court the
power to make control orders, the Bill potentially confers on these courts
non-judicial power inconsistently with the requirements of Chapter III. According to these witnesses, the making of
control orders is not in accordance with the judicial process, particularly the
rules of natural justice, and is not therefore an exercise of judicial power.
1.6
The
constitutional difficulty presented by control orders could be addressed by
amendments to the Bill to ensure that the process for making the control orders
by the ‘issuing courts’ is in accordance with the judicial process. This
requires an open hearing subject to limited exceptions, the presence of the
affected party, and the application of the rules of natural justice and the
rules of evidence.
Preventative Detention Orders – Division 105
1.7
The Bill purports
to confer the power to issue continued preventative detention orders on Federal
Court judges, State/Territory Supreme Court judges, retired Chapter III court
judges or State Supreme Court or State District/County court judges or a
President or Deputy President of the Administrative Appeals Tribunal.
1.8
The power to
issue preventative detention orders is a non-judicial function and the
Attorney-General’s Department advised the Committee that that their legal
advice was that this function could be invested in Federal Court judges in
their personal capacity, as persona designata.
Again, this advice was not provided to the Committee.
1.9
Other witnesses
told the Committee that there was the potential that this non-judicial function
could be considered incompatible with the judicial role of federal judges and
State/Territory judges who may be invested with federal jurisdiction. Witnesses from the Gilbert and Tobin Centre
emphasised that this non-judicial function invested in these judges has the
potential to ‘seriously compromise the integrity, independence and reputation
of judicial office, undermining public confidence in the judiciary.’
1.10
The
constitutional difficulty presented by this could be overcome simply by
removing serving federal and State/Territory judges from the panel authorised
to make continued preventative detention orders.
Review of Preventative Detention Orders – proposed
sections 105.51 and 105.52
1.11
An application
may be made to the Security Appeals Division of the Administrative Appeals
Tribunal (AAT) for review of the decision of an issuing authority to make or
extend a preventative detention order pursuant to proposed section 105.51. However, such an application can only be made
after the order expires. Whereas a
person can obtain judicial review (common law and constitutional writs) to challenge
the legality of the decision during the duration of their detention, they
cannot challenge the merits of the decision to detain until the expiration of
the order.
1.12
As the making of
a preventative detention order is a non-judicial function, the proper place for
merits review of the order is an administrative body such as the AAT. There does not however appear to be any
justification for excluding merits review of the order during the duration of
the detention.
1.13
There is
provision for review and the granting of remedies by a State or Territory court
of a Commonwealth preventative detention order in circumstances in which a
corresponding state preventative detention order is made under proposed section
105.52. The Court may require that the
Commissioner of the Federal Police provide to the Court and the parties the
information that was put before the person who issued the Commonwealth order
when the application for the order was made.
Such information need not be disclosed where the information is likely to
prejudice national security within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004
(Cth).
1.14
There is no
provision in proposed section 105.51 which provides for similar information to
be provided to the AAT on a merits review.
As the Law Council submitted, the consequence of this is that the AAT
would not have the required information to conduct a meaningful review of the
merits of the preventative detention order.
1.15
These problems
could be addressed by amendments to the Bill which permit merits review of
preventative detention orders by the AAT during the duration of the
detention. In addition, a provision
which allows the AAT to require that the Commissioner of the Federal Police
provide to it and the parties the information that was put before the person
who issued the Commonwealth order when the application for the order was
made. Such information need not be
disclosed where the information is likely to prejudice national security within
the meaning of the National Security
Information (Criminal and Civil Proceedings) Act 2004 (Cth).
Senator Linda Kirk
Australian Labor Party
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