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Tuesday, 10 December 2002
Page: 7614

Senator ELLISON (Minister for Justice and Customs) (8:32 PM) —I think the question of constitutionality was addressed in the inquiry by the Senate Legal and Constitutional Legislation Committee. I think that was canvassed adequately there. I am aware that there has been some suggestion that some constitutional aspect of this bill causes concern. In particular, it has been suggested that the detention powers under the bill are inconsistent with chapter 3 of the Constitution, which establishes the separation of powers between the executive and the judiciary. It has been argued that the inconsistency arises because the power to detain a person for punitive reasons is a judicial function which cannot be conferred upon the executive. The detention provisions under this bill are not for the purpose of punishing criminal activities. There is no punitive element to detention under the bill. Our advice confirms that the bill is constitutionally valid.

As to whether we can provide a copy of that advice to the committee—we have run into the usual chestnut of providing advice— I will have to take that on notice and seek the views of the Attorney-General. But certainly we do not believe that there is any aspect of this bill which is unconstitutional. I am not sure that the first committee report by the Senate Legal and Constitutional Legislation Committee suggested that the bill was unconstitutional, but I will have to have a look at that report again. I thought that it did not.