ADJOURNMENT

Senator BELL (New South Wales—One Nation Whip) (20:34): One Nation will do everything in its power that it can to keep Australia safe from terrorists. This is why One Nation has introduced the Protecting Australians from Foreign Terrorist Fighters Bill. There is a clear gap in Australia's national security laws.

We all know that there are cases where Australian citizens have voluntarily travelled overseas and have joined or materially supported terrorist organisations. These people continue to pose a serious threat, and simply managing their return is not enough to deal with this threat. Our bill addresses these extremely dangerous cases.

Our legislation will give the Federal Court the power to prevent a person returning while they continue to pose an unacceptable risk to the Australian community. One Nation is very confident in the constitutional strength of this bill, which is why we were happy for the bill to be considered by the Senate Legal and Constitutional Affairs Committee. In fact, we referred it to them ourselves.

We are happy for the legal arguments to be tested and for the safeguards in the bill to be examined on their merits. Sadly, it seems the Labor government was not overly keen to do the same. There was no submitter to this legislation.

This report gave a definitive opinion that the exclusion regime in this bill would be struck down by the High Court. Yet before the inquiry had even completed its work, Tony Burke was continuing some rather dishonest attacks against our legislation—legislation that will help keep Australians safe. It is worth recalling that Senator Watt even told the Senate that Labor had received legal advice that any extension of the existing laws would be knocked over by the High Court.

He used those terms about the constitutionality of our proposal, so we asked for the legal advice behind these claims. The Senate supported our document order for this advice on our bill. Now, the government has the Attorney-General's Department, Commonwealth lawyers and access to the full legal resources of the Commonwealth.

If Labor had authoritative legal advice, this would've been the time to produce it. Instead, the government produced a Sydney Morning Herald article. That was the legal advice they claimed to be relying on.

There was no constitutional opinion, no departmental analysis and no advice identifying which provisions would fail, just a newspaper article. That was what the minister was referring to when he said they had received legal advice. Tony Burke was confident enough to publicly declare the fate of our bill in the High Court, but, again, when the Senate asked for the legal basis of that confidence, the government has produced nothing substantive.

Either the government has legal advice and it would not show it to the parliament or the ministers have been making claims they cannot substantiate beyond Sydney Morning Herald articles. Neither inspire any confidence. The government also chose not to make a submission to the committee.

The inquiry dealt directly with terrorism, national security and constitutional law. The government has enormous legal and national security resources at its disposal, yet it did not come before the committee and identify which provisions it believes are unconstitutional, explain why, suggest amendments or propose a better mechanism. It is simply opposed the bill.

That matters because we in One Nation have done the opposite. We've put forward the legislation. We believe there are solid judicial oversight and safeguards in it, and we welcome the scrutiny.

We have been prepared to have the constitutional arguments tested. If the government believes that any particular provision is defective, we would love them to identify it. If it believes a section goes too far, we'd love them to explain why.

If the Attorney-General's Department has a stronger constitutional mechanism to achieve the same objective, please put it forward. The objective should be clear: Australia should have the strongest lawful protections available against people who voluntarily join or materially support terrorist organisations overseas and who continue to present a serious threat to Australians.

Our legislation is deliberately designed around judicial oversight. A minister cannot simply decide to exclude someone. Under our legislation, it would be a Federal Court making the order.

The minister must prove that the person voluntarily served with, participated in or materially supported a listed terrorist organisation, and the court must also be satisfied that allowing the person to return would pose an unacceptable risk to the Australian community. It must consider whether less restrictive measures could adequately protect the public. The bill includes limited duration orders, review mechanisms, protections for minors and parliamentary reporting requirements.

Again, the conduct of individuals travelling overseas to support terrorist organisations must be voluntarily. These are not afterthoughts; they are deliberate safeguards built into the legislation from the very beginning. The committee's response also fails to give enough weight to the important distinction between this bill and the existing temporary exclusion order system.

The current framework manages a person's return. It can control when they come back and impose conditions around that return. Our bill deals with the more serious case of what happens when managing that return is still not enough to protect Australians.

Where a person presents such a serious continuing threat that their return would create an unacceptable risk, a federal court can determine whether exclusion is necessary because less restrictive measures will not adequately protect the community. This is a different power for a different level of threat. Criminal prosecution remains essential.

If someone can be charged with and convicted of a terrorism offence, prosecute them. But foreign fighter cases can involve serious evidentiary difficulties. For instance, the conduct may have occurred years earlier in Syria or Iraq.

Evidence may never have been collected. Witnesses may no longer be available. Our security agencies may have strong intelligence that a person is dangerous without having evidence capable of proving a criminal offence beyond reasonable doubt.

That leaves a very real gap. Once that person returns to Australia, the threat is here. Our police must manage it, and our intelligence agencies must monitor it.

Parliament is entitled to act before that point if there is a lawful way to do so, and our bill provides that mechanism. It also provides something the majority report gives little attention to: deterrence. The message should be unmistakeable: if you voluntarily travel overseas and join or materially support a terrorist organisation, your Australian passport should not automatically guarantee your return while you continue to pose an unacceptable threat.

There can be consequences long after you leave the battlefield where you were supporting terrorists in murdering innocent people. Under One Nation legislation, a federal court may determine that your return would create such an unacceptable risk, and it may determine that you cannot come back while that threat remains. Laws do not only respond to conduct after it occurs; they also shape consequences and deter people from making those choices in the first place.

Ultimately this debate is about who carries the risk. The people covered by this bill are not Australians who accidentally found themselves overseas during a conflict. The legislation requires voluntary involvement.

We are talking about people who chose to serve with, participate in or materially support listed terrorist organisations—people who may have supported organisations committed to murdering Australians and attacking our way of life. One Nation believes we have a duty to millions of Australians who stayed in this country, obeyed the law and expect their country to protect them.

That is what our legislation does. This government has not put forward a stronger alternative. What it has done in response is make sweeping constitutional claims, declined to participate properly in the inquiry, and produced a newspaper article when the Senate asked for the basis of their claim that they'd received legal advice.

That is shameful. If the government identifies a genuine constitutional defect then the parliament can deal with it. If the High Court ultimately needs to determine where the constitutional boundary lies, that's what the High Court is there for.

But Tony Burke does not get to make that decision. And if Labor is getting their legal advice from the Sydney Morning Herald, perhaps they should not be making these decisions. Our job is to make the strongest lawful measures we reasonably can to protect Australians.

If someone voluntarily joins or materially supports a terrorist organisation overseas and a federal court finds that their return would pose an unacceptable risk to Australians, the law should give that court the power to keep them out while that threat remains. That is what the bill does. That is why the Senate should pass it.

I will go back to the fact that the minister stood up and, in his response to my questions about constitutionality claims they were making, said that they had received legal advice. That's what he said in question time. We asked to see it through an order for the production of documents, and their response was to hand over a screenshot of a Sydney Morning Herald article.

I mean, the hubris and arrogance of that is quite a astounding. To everyone who ends up seeing this or hearing this, just remember that. And every time you hear a government minister claim that they have received legal advice, there's very good potential that they are just referring to something they read in the Sydney Morning Herald.

That is what government ministers are prepared to do. It is, frankly, outrageous. So we are going through a process.

One Nation has legislation. The government is just choosing not to engage with it. They are making claims, and when asked to support those claims are pointing to the Sydney Morning Herald.

This legislation will be brought before parliament by One Nation. It's an opportunity to debate it properly, to get into the merits of it. If you have those legal opinions, now's the time to bring them forward.

But we truly hope that the Senate treats it with the respect it deserves and supports the legislation.