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Thursday, 3 December 2015
Page: 9931


Senator BRANDIS (QueenslandAttorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (21:17): Senator McKim, I cannot tell you how much I am enjoying, on the last day of the parliamentary year and in the Christmas season, debating with you the concept of infallibility. In fact, you remind me of Pope Pius IX, who was the pope who, in the 19th century, declared the doctrine of infallibility, and it is said of Pope Pius IX that he once remarked to one of his cardinals, 'The problem with being infallible is you've got to be very careful about what you say.' Of course, the minister, who is not infallible, is going to be very careful, because ministers do not seek to make mistakes. They seek to make correct decisions, just as judges do. We have adopted an administrative law model in which judicial review is the curial safeguard. We could have adopted a curial model—no, not unnecessarily any more infallible or any less fallible than an administrative law model. We have adopted an administrative law model subject to judicial review rather than a curial model subject to appellate review. And we have done that, as I explained before, because that has been the way these provisions have always worked, and we have decided, rather than to rewrite the law, to adopt the existing model that has stood in the law since 1948 and contemporise it and, in contemporising it, expand it to a wider range of situations presented by the problem of non-state actors and modern terrorism.

Coming to the question towards the end of your contribution, if a person were to be deported—and, ex hypothesi, this person is somebody of whom the minister is satisfied that a notice should issue, because they have renounced their Australian citizenship by committing a terrorist act—then ordinarily they would be taken into immigration detention—that is the usual procedure, as I understand it—while arrangements would be made for their deportation. That is the way that it operates at the moment in relation to people who are not lawfully in Australia and are awaiting deportation in circumstances where it is not safe for them to be at large in the community. As to whether there was a limit on when proceedings could be commenced, one would imagine that such a person would commence proceedings reasonably promptly. But, because the kind of relief which they would be seeking under either section 75 of the Constitution or section 39B of the Judiciary Act would be a declaration or an injunction—primarily, that is the obvious relief—and those are equitable suits, they would not be subject to any statutory time bar. But they would be subject to the ordinary equitable defences of laches, acquiescence and delay.