The shadow attorney general, Mark Dreyfus, says it wants to remain bipartisan on national security but needs guarantee bill is constitutional

This article is more than 3 years old

This article is more than 3 years old

Labor cannot properly scrutinise a bill to amend the criminal code because the government will not guarantee the solicitor general gave advice on its final version, the shadow attorney general Mark Dreyfus has said.

Dreyfus has demanded the government get the solicitor general’s advice on the bill to hold high-risk offenders after their sentences expire and postpone a parliamentary joint committee on intelligence and security meeting scheduled for Friday until it has.

He insisted Labor is not abandoning bipartisanship on national security, merely trying to guarantee the bill is constitutional.

Gleeson saga will have 'chilling effect' on public service, says former bureaucrat Read more

The bill amends the criminal code to establish a scheme for the continuing detention of high-risk terrorist offenders who are considered by a judge in civil proceedings to present an unacceptable risk to the community at the conclusion of their custodial sentence.

Last week the attorney general, George Brandis, said the government had “received advice on the original draft of the bill, including from the solicitor general”.

Dreyfus wrote to Brandis demanding he guarantee the solicitor general had given advice on the current version.

At a press conference in Melbourne on Thursday, Dreyfus said Brandis had not responded.

“The bill is due to be considered by the committee in a report that’s due to be handed to the parliament within days, and Brandis has failed to respond to my request for information about the constitutionality of the bill,” he said.

Dreyfus said he had sought the assurance because of revelations the government had not shown the solicitor general, Justin Gleeson, the final version of its bill to strip terrorists of Australian citizenship.

That fact was revealed in a high-profile stoush between Gleeson and Brandis over whether the government was bypassing the second legal officer’s advice, which culminated in Gleeson’s resignation on Monday.

Dreyfus has written to the chairman of the committee scrutinising the bill, Michael Sukkar, warning that the committee needed “absolute clarity” about whether Gleeson saw the final version.

He said Gleeson had claimed Brandis misrepresented his advice by quoting advice on an earlier version of the citizenship stripping bill to support a version he had not seen.

Dreyfus said Labor “has always approached matters of national security in a bipartisan manner – and we are not seeking to jeopardise the tradition of cooperation”.



Rather, Labor wanted to ensure the bill would withstand high court challenge. “The last thing our country needs is to unnecessarily risk laws being struck down in the high court,” he said.



Dreyfus said submissions to the committee and advice from the parliamentary library warned there were potential constitutional problems with the bill.

That advice concluded the bill was likely to withstand a challenge based on the claim experts giving evidence about a convicted terrorist’s likelihood of re-offence would be exercising judicial power.



But it noted a range of ways the terrorist bill departed from a Queensland scheme for the continuing detention of sexual offenders which may make it unconstitutional.

Those included limitations on the ability of the court to consider alternatives to continuing detention, the possible lack of rational connection between the person’s conviction and their future risk, and a more limited duty of the attorney general to disclose details of an application for continuing detention.

The joint committee is due to meet and consider the bill on Friday.

Dreyfus said it was “unacceptable” to expect Labor to comment on the bill without an assurance the solicitor general had seen the final version, and the committee meeting should be put off until that assurance is given.

He renewed Labor’s calls for Brandis to resign or be sacked, which was backed on Wednesday by the Australian Lawyers Alliance.

Sukkar said he had received Dreyfus’s request on Thursday morning and would respond on the same day.

“It is my strong opinion that the committee’s review of this important legislation should be conducted in a professional and bipartisan manner,” he said.

“This has previously been the committee’s approach.

“This matter is too important to be played out in the media for partisan political purposes, so I will not be commenting further at this time.”

Guardian Australia contacted Brandis and the justice minister, Michael Keenan, for comment.