While we have ultimately decided to recommend that this Bill be passed (with amendments), Labor members are concerned that a number of issues have not been adequately scrutinised by this Committee in the limited time available.
Most fundamentally, Labor members note that the President of the Law Council of Australia, Arthur Moses SC, and Professor Helen Irving (among others) have stated that the Bill is unconstitutional on the basis that it infringes the constitutional right of abode. Neither the Department of Home Affairs nor any other government representative has sought to engage with – or has disagreed with – the arguments put forward by Mr Moses or Professor Irving.
Clearly, Australians are not made safer by laws that are found to be unconstitutional.
The Committee has sought to address the constitutional concerns that have been raised by submitters by recommending that the government obtain legal advice from the Solicitor-General (or equivalent) on the constitutional validity of the final form of the Bill. Labor members of the Committee do not believe this recommendation goes far enough.
This government has previously misrepresented the advice of the Solicitor-General to this Committee and, as such, Labor members believe that the government should:
specifically ask the Solicitor-General to provide it with advice on how the Bill could be amended (if at all) to ensure that it has strong prospects of withstanding any constitutional challenge; and
provide a copy of the Solicitor-General’s advice to the Committee for review.
Hon Anthony Byrne MP
Senator the Hon Penny Wong