The World Today - Tuesday, 25 October , 2005 12:10:00 Reporter: Peta Donald ELEANOR HALL: The Prime Minister has rejected the claims made by Queensland's top legal bureaucrat that the Federal Government's proposed counter-terrorism laws could be unconstitutional.
On AM this morning it was revealed that Queensland's Solicitor General advised Premier Peter Beattie that the Prime Minister's proposals, which were initially agreed to by the State leaders, could run up against constitutional problems and that Mr Beattie had written to his State and Territory counterparts to warn them that aspects of the new regime could face legal challenges.
John Howard, though, says that is not the legal advice that he's received.
But the Prime Minister says he is more than willing to talk to the Premiers about any new concerns they may have.
From Canberra, Peta Donald reports.
PETA DONALD: Peter Beattie rose to his feet in the Queensland Parliament this morning with this response to the story of a constitutional question mark hanging over the draft counter-terrorism legislation.
PETER BEATTIE: Mr Speaker I've this morning written to the Prime Minister in these terms: "late last week I received advice from the Solicitor General of Queensland on the Commonwealth Government's draft anti-terrorism bill 2005, the draft bill. The advice raises constitutional problems with the proposed regimes for preventative detention and control orders as contained in the current version of the draft bill.
"I provided copies of the Solicitor General's advice to other State and Territory leaders on a strictly confidential basis to assist in our deliberations on the draft bill.
"While it was my intention to ascertain whether other jurisdictions had received similar advice before I approached you with my concerns, it appears that at least some of this advice has been provided to ABC radio.
PETA DONALD: It was the ABC's AM program that learned of the advice of possible constitutional problems with the preventative detention and control orders. And that Queensland's Solicitor General warned of the risk of the High Court taking the view that the judiciary should not be helping the police with secret detentions, and to do so could bring the courts into disrepute.
The Prime Minister was asked about the latest obstacle to his plans on ABC Radio in Cairns.
JOHN HOWARD: The advice we have is that these laws are constitutional. There's never been any doubt raised by our legal advisers. I've heard on the radio this morning about some concerns raised within the Queensland Government and about a letter that Mr Beattie is said to have written. I haven't seen that letter. It's all news to me.
I can assure your listeners that the advice we have from our legal authorities is that what we are proposing is quite constitutional. I'm perfectly happy to discuss any of these matters with any of the State Governments, quite happy to do so.
PETA DONALD: John Howard had been hoping to introduce the new anti-terrorism legislation to Parliament as early as next week. So, he made the point once again, that's he's only too willing to talk to the Premiers about their concerns.
JOHN HOWARD: If Mr Beattie or anybody else has queries, he wants to talk to me about it, well I'm only as far away as a telephone.
PETA DONALD: For his part, Queensland's Peter Beattie sounds happy to talk.
PETER BEATTIE: I still hope to pursue discussions with my interstate colleagues and provide you with more complete advice in the near future.
Mr Speaker, I simply want to advise the House that yes, we have been provided with an opinion from the Solicitor General. It was my intention that this would've been pursued with some common sense with my colleagues.
I'm not interested in making this a public issue, or pursuing some sort of silly public debate. What I'm interested in is resolving these issues, ensuring that we actually protect Australia, protect the nation, protect Australians as well. That's why we've insisted on a public interest monitor. Any of these legal issues we will deal with and we'll deal with them sensibly.
PETA DONALD: Other State Premiers, including Victoria's Steve Bracks and Morris Iemma in New South Wales, say they're seeking their own legal advice.
Morris Iemma.
MORRIS IEMMA: Anecdotally, there's not a written opinion yet, and we'll await that, is that that's not the case but we'll be having the benefit of our Solicitor General's advice very shortly.
PETA DONALD: But one supporter of the proposed new laws is urging the Commonwealth and the States and Territories to press on, despite the constitutional cloud.
Neil James from the Australia Defence Association.
NEIL JAMES: Well it would have to be tested, but the precedents established during World War I and World War II would indicate that most of the reasonably contentious provisions would be constitutional.
There were numerous High Court precedents during World War I in particular and to a lesser extent during World War II, for example on the legality of internment, and some of the most recent comments by some of the supposed constitutional law experts, the Australia Defence Association feels haven't taken into account the history in the precedents in these cases.
ELEANOR HALL: Neil James from the Australia Defence Association ending that report from Peta Donald.
John Howard has dismissed the claims made by the Queensland's Solicitor General that the Federal Government's proposed anti-terror laws could be unconstitutional. He has also come under criticism for planning to introduce the laws on Melbourne Cup Day, a day when most Australian’s will be paying attention to a Horse Race, and not politics.

In an unusual move, the government will compel an instantaneous debate on the legislation, giving the opposition 10 minutes to scrutinize the draft laws rather than the usual fortnight.

Opposition homeland security spokesman Arch Bevis told  The Age newspaper "This is an extraordinary abuse of power, the likes of which I don't think anyone would remember," 

"John Howard now has control of both the House of Representatives and the Senate, and if he wants to use his power in an arrogant, bloody-minded way we don't have the numbers to stop him."

Earlier today Queensland’s Peter Beattie told ABC Radio that the Prime Minister's proposals could face legal challenges. Other State Premiers are seeking their own legal advice, with only the Western Australian Premier also raising similar concerns

John Howard told ABC’s World Today “The advice we have is that these laws are constitutional. There's never been any doubt raised by our legal advisers”.

The Prime Minister added he would be willing to talk through the issue with the State Premiers. Agreeing this morning that the solicitor-generals from the states will consult along with the national equivalent to work through these issues .

The QLD Premier who supports the principles of the bill told ABC radio “I'm not interested in making this a public issue, or pursuing some sort of silly public debate. What I'm interested in is resolving these issues, ensuring that we actually protect Australia, protect the nation, and protect Australians as well. That's why we've insisted on a public interest monitor. Any of these legal issues we will deal with and we'll deal with them sensibly.

Independent supporters of the bill are urging the government to push ahead. Neil James from the Australia Defense Association says that the legal precedents recognized during World War I and World War II would indicate that most of the reasonably contentious provisions would be constitutional.

However Constitutional lawyer John Williams says that judges and magistrates could argue that the proposed laws undermined judicial independence. Dr Williams believes a High Court challenge to the laws was almost inevitable.

Telling ABC Radio that "I could not see that this legislation could operate for long without a challenge being made," 

The Federal Opposition Leader Kim Beazley calling on Mr Howard to exercise vigilance as it would exasperate Australian taxpayers if people mistakenly subjected to his anti-terror laws were then paid thousands of dollars in damages.

Interviewed by Melbourne’s Herald Sun Newspaper, he said, "You have to, when you are introducing laws like this, make absolutely certain there are checks and balances in it."

Mr Beazley also says that the Anti-Terror Laws aren’t the action the Government could be taking to protect Australians..

"We have yawning gaps, yawning holes in the protection of the Australian people."

He cited Australia's coastal borders as being unprotected, with habitual illegal fishing incursions, a sign of the country's vulnerabilities

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