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Thursday, 3 December 2015
Page: 9928


Senator McKIM (Tasmania) (21:01): Thanks to the Attorney for that response, and I disagree with nothing that you have just said; however, I want to put to you that you are seeking to establish a process which could create a higher level of risk that a miscarriage would occur compared to a judicial process. I would like you to respond to the last point of my previous question which is: why have you not included a judicial process in the sequence of events? For example, you could have created provisions where a draft notice is issued to a person. I accept that, if they are overseas, it might be difficult to do that, but there are ways that you could legitimately attempt to do that.

I will pause here to—and I may get the numbers wrong, Attorney, but I believe you informed the Senate at some stage in the last week or so that there was knowledge of about 130 Australian citizens who had been over to fight for ISIL and that about 30 of them had returned to Australia. I know you will correct me if I am wrong but, if those numbers are right, somewhere in the region of a quarter of the known Australians citizens to have gone and fought with ISIL have in fact returned to Australia.

I am suggesting to you that you could have created process where a draft notice is issued, every reasonable attempt is made to communicate to the person that a draft notice has been issued and to provide them with a copy of the draft notice. There would then be an opportunity for them to, if they wished, contest the notice, go into the judicial system and seek a merits review of the minister's intention to issue a notice, which would have been communicated in the draft notice. Then you buy the legal system into this process and thereby minimise the chance of a mistake occurring.

But you have not done that. You have sidelined the courts entirely out of this, until they get the opportunity for a post facto review of the notice. I would appreciate if you could explain why you have done that; why you are sidelining the courts. Taking away someone's passport, withdrawing them from the electoral roll and denying them the right to vote in this country is a very significant action to take. I am sure you would agree with that. For significant punitive actions—and those are significant punitive actions—that flow as a consequence of the renunciation by conduct normally in many of the statutes of this place, we require them to be delivered by the independent courts, not by a minister who is a member of the government of the day. I ask you again: why are you sidelining the courts out of this until a post facto review?