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Monday, 28 August 2000
Page: 16733


Senator MURRAY (4:05 PM) —I rise to address the Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2000 with the perspective not only of an Australian Democrat strongly concerned about civil liberties but also of a member of the Senate Committee for the Scrutiny of Bills. That committee has a deserved reputation in this place for being a nonpartisan and principled watchdog for the Senate when matters arise which could infringe on our civil liberties. I want to start my address with a very basic presumption that all senators should bear in mind, and that is that what a citizen has to fear most is the state. In any study of history, a citizen does not have to fear another citizen as much as a citizen has to fear the state. It is governments, it is the executives within governments and it is the leaders of nations that take us into war and that are capable of using the full power and the full terror of the state, either in external or in domestic circumstances. That is why we, as people who have inherited a democratic and liberal tradition, fight to uphold the rule of law and fight to restrain, to limit and to constrain the power of the state.

In my four-plus years in this chamber, I have seen an increasing number of bills which increase the authority of the state. What may be seen as simple and technical issues are in fact major infringements of the rights of the individual and of the liberties and freedoms we should enjoy—issues such as strict liability offences, issues such as reversal of onus of proof, and issues such as mandatory sentencing. A demand for strong government can result in infringements which are eventually to the detriment of us all.

Many people know that I am a Zimbabwean by upbringing. When I was in Zimbabwe I was a vigorous opponent of the Ian Smith regime. The Ian Smith regime introduced a set of laws which utterly took away the liberties of the individual. It was called the Law and Order Maintenance Act, and it was designed for use by the state at a time of civil war to withdraw the right of habeas corpus, to detain people without trial, to allow for interrogation and for treatment which turned out to be quite abominable. The government of the day, supported by the people—who at the time voted for the government—thought that those powers and authorities were perfectly justified given the extraordinary circumstances of that country.

What do we find 20 years after the independence of Zimbabwe? We find that the latest tyrant and despot in that country, President Robert Mugabe, is using Ian Smith's Law and Order Maintenance Act to suppress and terrorise the civilian population. In other words, you have to be concerned that, where laws are introduced with perhaps the best motives, something worse may result later on. There has been much comment in these debates about good faith and our being able to rely on our governments. No-one in this chamber, no-one who has designed the bills and no-one who has put together the legislation can foresee the future. No-one can tell this chamber who will govern Australia in 20 years time. This bill is a permanent change to our law. This bill is not about the Olympics or about the Commonwealth meeting of ministers to be held in Australia. This bill permanently alters the relationship between the citizen and the state. Because it alters that, you have to ask what the motives were of those concerned. There are those people who think that the motives may be sly or may be to slip in some change.

I believe that executives, governments and bureaucracies are always inclined to infringe liberty because what they seek is the greatest discretion or the greatest leeway to carry out their duties as they perceive them. I do not necessarily believe that the motives of the people who introduced this bill fall into that category—although there is that general atmosphere behind it—but we have a circumstance where the persons who put this bill up saw it with another set of eyes, and I think that is particularly the fault of the Labor opposition. That expression is one that struck me in a recent address to the Democrat convention in America by vice-presidential nominee Lieberman. He spoke about how you see things through other sets of eyes. The set of eyes that prepared this bill saw terrorism and how to get the relationship between the federation and the states properly administered and regulated. Therefore, the bill is maximalist. It is designed for maximum discretion; it is designed to give as much leeway as possible—not with bad intent but because they failed to see the dangers. This country of Australia, through having lived through a century as one of the very few democracies of over 100 years, is singly naive about the dangers that can face it if you get a change in government and a change in circumstances. What other countries fear and have experienced Australians do not even get on their radar screen. But I fear this bill. I fear it because it gives power to the state which is not constrained and which is not limited sufficiently.

I want to read to you two quotes I took from the Oxford dictionary of political quotations, edited by Anthony Jay. I never rose to the rank of general but I will remind the chamber that I have war service of many years, and I have experienced countries where excessive powers have been given to the state. But I want to quote a general who became President of the United States—his name was Dwight Eisenhower. In the New York Times of 18 January 1961, he said:

In the council of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.

Woodrow Wilson, another American President, in a speech to the New York Press Club on 9 September 1912, said:

Liberty has never come from the government. Liberty has always come from the subjects of government. The history of liberty is the history of resistance. The history of liberty is a history of the limitation of governmental power, not the increase of it.

I sat through a briefing by someone whom I judged to be a man of integrity and—I do not have the actual quotes here—the military person concerned put words forward to this extent: that this bill will make the military in this country feel far more secure, feel far better, about how they can use power. I actually prefer it when they are uncertain, because when they are uncertain they might hesitate with their finger on that trigger or in how they deal with a member of the public. We have a situation here in this country where, at present, the vagueness of the constitutional authority—but one covered or clothed by convention, custom, common law and tradition—has made governments extremely wary of putting troops on the street, and there are great restraints on doing so. This bill as it stands, without considerable amendment, withdraws some of those limitations. It makes people like me extremely nervous because, if this act is not in the hands of a government of good faith, if it is not in the hands of people with a sound democratic tradition and good democratic beliefs, it could be used to bad purpose. It is no good saying, `We will fix it after the event.' That will be too late.

One of the key reasons citizens fear troops on the streets is that they understand an essential truth: soldiers are trained to kill; soldiers regard whoever they are opposing as the enemy. Police men and women are trained to deal with the public. Listen to the different word: `public' versus `enemy'. The police culture is utterly and completely different and imbues people with an utterly different approach to how they deal with citizens. You cannot change the culture of a soldier very quickly simply by putting him or her on the streets. You have to be aware that when a soldier is on the streets they have a different mind frame, a different set of views, from a police person. It is no good saying, `The only people who are going to be involved are the SAS, who will come in as a highly skilled and trained professional strike force.' That is just utter nonsense. If they are coming in as a highly skilled and specialist strike force, they will also need troops to be sealing off the streets, checking buildings and doing all the mundane tasks that ordinary ground troops have to do. The same soldier of integrity said to me, `Yes, but we have experience of being on the streets in Somalia and East Timor.' They do not compare to Australia. They did not operate, and were not operating, as a civil society at that time—they did not have the infrastructure, the institutions, the democratic polity within which to operate.

Having said all that, am I against the idea, out of hand, of having troops on the streets? No, I am not. There are times when you do need troops on the streets, and a major act of terrorism would need such a thing. But a bomb going off in a postbox somewhere does not. A national emergency might need such a thing or the police in a city being on strike might need such a thing when looting is being undertaken. But what this bill does is allow a definition which is so broad that it is without any restraint or restriction—without any examples—either in the explanatory memorandum or as legislative notes. Surely it would have been better to define a bill and say, `These are the circumstances in which we believe troops would be used on the streets, and to that we will add a proviso for exceptional emergency.'

Then there is the question of authorisation. To me there is an inherent conflict of interest if the government that caused the problem in the first place through its policies then sends in the troops. Imagine a government with some outrageous view on, say, industrial relations that causes riots and mayhem in the streets and then sends in the troops to fix it. That is a clear conflict of interest. What is the authorisation process? In my view authorisation should not occur unless it has the joint approval of state and territory governments and the Commonwealth—who must, even it is by conference call, each consult their respective cabinets and the respective leaders of the opposition. Why should one minister or three authorising ministers have this authority?

The Victorian and Western Australian governments were extremely concerned about the provisions under which the Commonwealth could act to protect Commonwealth interests. Isn't that an extraordinarily wide definition? So the authorisation and the consultation involved are very limited. The definition is very poor. As I say, it is written with a maximalist mind and not a minimalist mind. I think `terrorism' can be easily defined, and I think the additional circumstances in which the troops would need to be used could be easily defined.

Then we come to the powers. We have just had tabled in this chamber the Scrutiny of Bills Committee's report. On 6 April 2000 the Senate Standing Committee for the Scrutiny of Bills produced its fourth report of 1999, on entry and search provisions in Commonwealth legislation. Those entry and search provisions covered principles governing the grant of powers of entry and search—the authorisation, the choice of people on whom the powers were to be confirmed, the extent of the powers granted, the kinds of matters which might attract the grant of the powers, principles governing the manner in which the powers to enter and search are exercised, principles governing the provision of information to occupiers, principles ensuring that people carrying out entry and search are protected, principles relevant to judicial officers and the issue of warrants, and other general principles.

Nowhere in this bill did it establish a process for establishing those protocols. So we are going to give all of this power and authority to the Defence Force. Where are the protocols or guidelines that should be tabled with it? The detail does not need to be in the bill—I agree with that—but where is the process and the consultation so that the military, like the Australian Federal Police, would have benchmark search and entry provisions? Where are the protocols, the processes or the means by which we will know the training of Defence Force members, the relationship between them and the civilian forces, the use of force by Defence Force members, the issuing of weapons to Defence Force members, the use of weapons, the rights and obligations of persons detained by Defence Force members, the evidentiary use that may be made of any statements made by persons, the contents of reports to parliament following the cessation of a call-out?

This bill is about law. It is not about process and the interaction between the citizen and the state. It is rushed. It has been written with the wrong pair of eyes, and it is far too broad. If this bill as it stands is passed, Australians will live to regret it. That is my prediction. I feel very strongly that this bill as it is at present should be rejected. We need a bill, but not this bill.