Senator COONEY (1:23 PM) —People looking at this situation might well say, `Of course, this act should be passed. Isn't it nitpicking to say that the proper process wasn't gone through? The Attorney-General didn't have power to delegate to another minister. So what? Everybody knows what was intended, and everybody knows that the proper result has been obtained.'

The judge in this matter, Mr Justice Spender of the Federal Court, saw that argument and answered it—and, I thought, answered it very effectively—when he said:

It might be thought nit-picking and offensive to the efficient and orderly arrangement of the business of the Attorney-General's Department that I have concluded that the Minister for Justice is not a person who satisfies the description in s 19 of the Acts Interpretation Act. However, the liberty of an Australian citizen and our international obligations in respect of extradition highlight the need for a punctilious compliance with the law in this area. Deane J noted in Re Bolton; Ex parte Beane . . .

"Any officer of the Commonwealth Executive who, without judicial warrant, purports to authorise or enforce the detention in custody of another person is acting lawfully only to the extent that his conduct is justified by clear statutory mandate. That being so, it is the plain duty of any such officer to satisfy himself that he is acting with the authority of the law in any case where, in the name of the Commonwealth, he directs that a person be taken and held in custody."

It would be a terrible thing if we as legislators and the government of the Commonwealth became desensitised, that is, we thought that locking people up was not a terribly big issue. To take somebody from the community and to lock them up in a cell—which, judging from my visits there and from illustrations that are made of it, is certainly not comfortable or big—is a dreadful and fearful thing. We must never forget it is a dreadful thing to arrest somebody and to lock them up in gaol. It is easier to do that to someone who we think is guilty. If you look at the history of what is alleged against Peter Clarence Foster, you can see that people might well say that this person has been in gaol and, on the surface, has been associated with fraud and what-have-you and so it is really not as bad to lock him up as it would be to lock up someone who was innocent.

The law in this area and the whole concept of civil rights are tested by our ability to apply them to the unattractive people in the community—the people who have a criminal record; the people who are twisted in mind and body. It is very easy at times to provide civil rights and the rule of law to the attractive, but it is often times less so where the ugly of the community are concerned. I think it would be a bad mistake on our part to say, `Foster'—that is what we would call him; we would not give him his full title—`is guilty anyhow. Therefore, we won't give him the rule of law.' The judge was a bit overenthusiastic in nitpicking about whether the law should apply or not.

It would be a bad thing to do that, especially on the day when we are celebrating the 50th anniversary of the signing of the Universal Declaration of Human Rights. The issues of 50 years ago are still the same as the issues of today. Taking away a person's liberty or going into a person's house without a warrant is a fearful thing. It is a fearful thing, even with a warrant. It is a fearful thing to be put in gaol, if you are put in gaol according to process.

It is for that very reason that we need the process. If we are going to do these sorts of things as a community—that is, to take away a person's liberty or to invade his or her house—we should do it only within the strict conformity of the law. It would be wrong of us to think—not that we do think it, but if we were inclined to think it—that Mr Justice Spender was somehow being pernickety, that he was somehow being precious in these circumstances. He was doing what he should have done as a judge, that is, to protect the liberty of the individual.

It is proper for us as legislators to think of these things. Indeed, as legislators, we do things about civil liberties and what-have-you. Mr Acting Deputy President McKiernan, I think the committee you are chair of—the Senate Legal and Constitutional References Committee—has done great work in this area. It has given parliament a real part in the protection of liberties. It has had many a fine secretary. I see Mr Paul Griffiths here in this chamber, and it is very true that having him in the system will ensure that the sorts of things I am talking about are properly listened to. Senator Coonan, an eminent barrister from the Sydney bar, is here too. It is good to have her in the loop.

Senator Newman —Will a common senator do, too?

Senator COONEY —An eminent minister has gone beyond the legal toing and froing. But may I say the minister went to a great law school and was there with many other eminent people.

Returning to the issue, there is some very good thought going on about how we as a parliament can protect liberties. I refer to two people who have done a lot of work in respect of committees in this parliament. The first is Professor Janet Hiebert, who is a professor at the Queen's University in Canada. She has written several articles, but the one I particularly address my attention to is entitled `A hybrid approach to protect rights? An argument in favour of supplementing Canadian judicial review with Australia's model of parliamentary scrutiny'. This article shows that proper parliamentary scrutiny can overcome problems that might arise in legislation.

The Scrutiny of Bills Committee, which I am honoured to be the chair of, has played its part in that scrutiny. Over the numerous parliaments since I have been here, ministers have cooperated very effectively with that committee in trying to get legislation free of any infringements on human rights. The legislation that does infringe human rights usually does so by accident. When you draft legislation, these things can creep in. I must confess that over the years the executive has usually been keen to see that the legislation does not breach human rights.

The other person I want to refer to is Frank Brennan, who is probably known to everyone listening to me speak now. He has written a book called Legislating Liberty: a Bill of Rights for Australia? that has recently been published by the University of Queensland Press. Again, he goes into this issue of how parliament can have its input into seeing that civil liberties are properly attended to through the legislature. He argues that the Bill of Rights is certainly not to be put aside, because it can be a very effective means of looking after the liberties of the citizen, but that parliament itself can and should do more. I think we as a parliament should take up the words of Janet Hiebert and Frank Brennan and take their issues forward.

I make the point that the judge on this occasion was fulfilling the grand traditions of the judiciary, that is, he was ensuring that a person—no matter what his background, no matter whether he was good, bad or ugly—was nevertheless given the full protection of the law and that, if his liberty was going to be taken away, then it had to be taken away according to due process and that due process is a very high test—and so it should be.

The next point is that the courts over the years have been protective of the freedom of Australians, as has parliament. We should not overlook that. But this is the occasion and the time for the parliament to look more and more at its part—it would have to be a bipartisan approach—in establishing that legislation in any event does not contain problems in so far as human rights go. This is a good occa sion to raise these issues, today being the 50th anniversary of the Universal Declaration of Human Rights.

The work of both Janet Hiebert and Frank Brennan provides us as a parliament with a way of going forward to ensure that we do walk proud as citizens and that nobody is going to be able to interfere with us, as we do walk proud as citizens, unless the full operation of the law has been called into play. It does mean the full operation. We cannot cut the corners. Once we start cutting corners, then we get instances of injustice, which we want to avoid. I do not want to go through the number of people who have been wrongly convicted and wrongly treated over the years—that will keep going because to err is human. But I think we as an institution can do a lot to ensure that that does not happen as much as it otherwise would.