COALITION SENATORS' DISSENTING REPORT
1.1
On 21 June 2012, the Senate jointly referred the provisions of the
Maritime Powers Bill 2012 and the provisions of the Maritime Powers
(Consequential Amendments) Bill 2012 to the Senate Legal and Constitutional Affairs
Legislation Committee (Committee), for inquiry and report by 20 August 2012.
1.2
Coalition Senators of the Committee dissent from the Committee majority
recommendation that these bills be passed. Coalition Senators believe this
legislation may represent a surreptitious attempt to remove the Commonwealth's
power to turn back unauthorised boats as part of an effective national border
control policy. We say 'surreptitious' because the Government, in evidence
before the Committee, was unable to say categorically whether this power, used
by past Federal governments as an important tool in maritime policy, is
preserved in the present legislation.
1.3
We note that the power to turn back boats has been exercised on several
occasions by Commonwealth agencies, in particular by the Royal Australian
Navy. Former Prime Minister Kevin Rudd committed his government to 'turning
back the boats' shortly before the 2007 election, and the Coalition has
committed to use such a power in appropriate circumstances under an alternative
government.
1.4
Coalition Senators observe that the Maritime Powers Bill 2012 purports
to set out comprehensively the powers of authorised officers in a maritime
setting. However, officers of the Attorney-General's Department were unable to
tell the Committee how, if at all, the power to turn back boats was replicated
in this bill.
1.5
It was suggested that the bill, in clause 5, preserves the prerogative
powers of the Commonwealth, including the power to repel unauthorised boats.[1]
However, it seems to Coalition Senators that this bill evinces a clear
intention to describe and regulate Commonwealth maritime powers, so that any
prerogative powers must be read down by the constraining provisions of the
bill, including clauses 32, 54 and 69. It is very doubtful that the present
power to turn back boats is preserved by these provisions.
1.6
Coalition Senators cannot support these bills
while they operate to repeal or remove this crucial tool in Commonwealth
maritime and border protection policy.
Senator Gary Humphries Senator
Sue Boyce
Deputy Chair
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