Senator FAULKNER (Leader of the Opposition in the Senate) (10:51 AM) —Mr Temporary Chairman, I hope you do not mind if I come back to the amendment before the chair instead of debating the amendments that Senator Brown is going to move in short order. We always need to be flexible in these committee debates.

Senator Robert Ray —It saves time.

Senator FAULKNER —I accept that absolutely, Senator Ray—but I do not know if any of us should be talking about saving time at the moment. I want to come to the substantive question before the chair. It is a very serious issue, and I acknowledge that the government has treated it seriously. I have read very carefully and listened very carefully to what Senator Ellison has said. I appreciate the fact that he provided the opposition with a response to Senator Brown's amendments and that he was generous enough to say to the opposition that the government was comfortable if it discussed with or provided a copy of that response to Senator Brown in the chamber discussions about these amendments.

We have listened closely to what Senator Brown has said, and we certainly have listened carefully to the government's response. In particular, I note that the government now believes that departing in any way from our obligations under a Security Council resolution would place Australia in breach of article 27 of the Vienna Convention on the Law of Treaties, to which Australia is a party. Indeed, as I understand it, the government's position, as explained by the minister, is that under article 27 of the Vienna convention, Australia cannot justify failure to perform a treaty obligation on the basis of domestic legal impediment. The minister at the table noted that Australia was bound and obliged to comply with UN Security Council resolutions, notwithstanding any conflict with domestic law resulting from the operation of a disallowable instrument. Rightly, the government states these principles in support of our role in the international fight against terrorism. The principles are solid and should, in my view, form the foundation for Australia being a responsible international citizen.

Nevertheless, I think I can best characterise the government's counter arguments as an unprincipled resort to a principle the government does not believe in. As I hear and read what the government has said in response to Senator Brown's amendments, we have a government that has consistently and persistently argued to the High Court that it should interpret UN conventions in a way which does not give rise to domestic legal obligations. The government, of course, for the most part—I am sure senators would be aware—derides United Nations conventions. The same government tells us we should not contemplate requiring it to freeze assets only by regulation because, heaven forbid, this would place it in breach of a UN convention. I have sought advice on this issue because I have to give a considered response to it; it is a serious issue that is raised in the Green amendments. I am reliably advised that this is the same government which has repeatedly instructed the Solicitor-General to argue the contrary case, the same government which was trying to persuade the High Court as recently as 16 May this year in the Yorta Yorta case that our domestic laws did not need to be consistent with international law standards. So I do hope the minister at the table, Senator Ellison, and his ministerial colleagues, the Attorney-General's Department and the Australian Government Solicitor have been paying close attention to this change of heart. I do not want to see a situation where the government says one thing in the parliament and says another thing in the courts. I think if the government really believes in those principles, as Senator Ellison has stated them, then it should stick to them and stick to them at all times.

I have considered the arguments that have been put forward by Senator Brown and I have considered the arguments that have been put forward by Senator Ellison on behalf of the government. And I would like to outline to the committee the conclusions which the opposition has drawn as a result. It would be defensible for the parliament to decide to implement by regulation the asset freezing obligations flowing from our acceptance of the UN convention on the suppression of terrorist financing. But it is also true that if parliament were to disallow a regulation freezing the assets of an organisation listed by the United Nations under this convention, this would place Australia in breach of its obligations under the convention. And we say that that is undesirable.

We also recognise that a regulation regime would create an operational difficulty. Clearly, if Australia were to adopt such a regime, any entity with assets in Australia would immediately take action to move the assets as soon as the United Nations listed it, knowing that the Australian government would be bringing forward a regulation to freeze these assets. So we have decided, because of that situation, not to support Senator Brown's amendments. We do not accept that our approach on this issue is inconsistent with our insistence on a regulation regime for listing UN declared terrorist organisations. The current United Nations list comprises organisations and individuals in respect of which UN member states have a number of obligations: freezing assets, preventing entry into or transit through their territory and preventing the supply of arms or related materiel.

We have proposed—and the Senate has accepted—that the Attorney-General should have the capacity, if there is a particular need to do so in the Australian context, to declare an organisation which is on the current or, for that matter, any future UN list to be a terrorist organisation for the purposes of this legislation. The Attorney-General will need to make the case for any such listing; the Attorney-General will need to persuade the parliament.

In the case of the UN Convention on the Suppression of Terrorist Financing, there is a very specific obligation that flows from our ratification of it—that is, to freeze the assets of any organisation listed pursuant to the convention. That is our obligation as a member state of the United Nations, and that is an obligation that we believe Australia should take seriously. We accepted that obligation when ratifying the convention, and we accept it in passing this legislation that gives domestic effect to our obligations under the United Nations convention. It is for those reasons that the opposition will not support this amendment from Senator Brown; and it is in those circumstances—and I commend the case that has been mounted in relation to this—that we do not consider it necessary to require a disallowable regulation to give effect to those obligations.