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Lateline

Thursday 27 October 2005

Former Solicitor-General urges against proceeding with proposed counter-terrorism laws; state and territory leaders try to establish whether t he proposed laws breach the constitution

TONY JONES: The planned introduction of the Government's new counter-terrorism legislation to parliament is now almost certain to be delayed. As the legal wrangle continues over whether the laws breach the Constitu tion, the country's judges are being urged to boycott the measures. A former Commonwealth solicitor-general says he would advise the Government not to proceed with the legislation and says serving judges should have nothing to do with the new powers. From Canberra, Narda Gilmore reports.  

 

NARDA GILMORE: State and Territory leaders have their lawyers working overtime trying to establish once and for all whether the proposed counter-terrorism measures breach the Constitution.  

 

PETER BEATTIE, QUEENSLAND PREMIER: We are trying to be constructive to resolve these matters, but, Mr Speaker, there's no point the States agreeing to laws that could effectively be challenged in the High Court.  

 

NARDA GILMORE: Late this afternoon, the country's solicitors-general held another phone hook-up.  

 

JOHN HOWARD, PRIME MINISTER: You know, it's a big legal pow-wow, but it's not altering the substance of our agreement.  

 

NARDA GILMORE: The Prime Minister is not worried about words of caution included in the Government's own legal advice.  

 

JOHN HOWARD: There's nothing strange about a legal view being less than 100%.  

 

NARDA GILMORE: But if it was up to Gavan Griffith, the advice would be much stronger. He was the Commonwealth's solicitor-general for 13 years and says he'd be advising the Government not to proceed.  

 

GAVAN GRIFFITH, FORMER COMMONWEALTH SOLICITOR-GENERAL: You expose yourself to the risk that in a year, two years, a majority of the High Court might hold it unconstitutional and then the law is invalid.  

 

NARDA GILMORE: Mr Griffith shares State concerns that asking judges to decide on preventative detention and control orders could compromise their independence. He agrees with the NSW Law Society that judges should refuse such powers.  

 

GAVAN GRIFFITH: I would have no hesitation to any judge who asked me - you have nothing to do with it.  

 

NARDA GILMORE: John Howard says he can't rule out the laws being challenged in the High Court.  

 

JOHN HOWARD: When the law is implemented, people might challenge it. That happens with anything.  

 

NARDA GILMORE: The Opposition Leader says that's not good enough.  

 

KIM BEAZLEY, OPPOSITION LEADER: If these laws turn out to be in some way or another unconstitutional and some bloke whom the intelligence community thinks may conceivably be a threat and has had a control order or a detention order under this, takes it successfully through the courts and walks out with a $1 million package in his back pocket, the Australian public will be rightly incensed.  

 

NARDA GILMORE: State and territory leaders are yet to see the final legislation and say the deadline for them to sign off on the laws has been extended to Monday instead of tomorrow. The delays mean the legislation is unlikely to reach parliament by Tuesday as the Government has planned.  

 

STEVE BRACKS, VICTORIAN PREMIER: I think that's almost impossible now and I can't see how that timetable could be met and, frankly, I don't think it's a realistic timetable.  

 

NARDA GILMORE: John Howard needs the support of four states and he's confident he'll get it.  

 

JOHN HOWARD: I don't believe any of the premiers will walk away from that agreement.  

 

NARDA GILMORE: He's not so sure about the ACT Chief Minister. Jon Stanhope today received final legal advice warning that there aren't sufficient safeguards. Mr Stanhope will announce tomorrow whether he still give his support to the legislation. Narda Gilmore, Lateline .