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Monday, 21 October 2002
Page: 5465


Senator BROWN (1:18 PM) —The Greens oppose this legislation. I can no better outline our reasons for that than by going back to the Senate Legal and Constitutional Legislation Committee report which Senator Barney Cooney and I submitted in the wake of the public hearings into the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002. It states that the bill:

... marks a sharp fall in the quality of our civil life and of our democratic system. Any present or potential danger it seeks to counter should be met in ways akin to those now operating within our current law enforcement regimen.

In proposing any new legislation the onus is on the proponents to justify why change is needed. This should always be the case, but especially when the proposed changes represents a fundamental change to our civil and democratic rights.

The main proposition in the Bill would be such a change. The bill proposes that people, not reasonably suspected of committing a crime, should be deprived of their liberty. This is a fundamental shift away from principles that in some respects date back to the Magna Carta. No one should be imprisoned or detained unless they have a committed a crime or a case can be shown on reasonable grounds that they might have.

There is a little evidence, at least of a public nature, to show the extreme measures provided for in the Bill are needed. There appears an unwillingness on the part of the government and authorities to advance hard and testable evidence which would enable us to assess the need for such a radical change. Nor do they meet the argument that for a community to be free and democratic it must take the risk that some within it will pervert that freedom and democracy.

That is the real heart of the dilemma that we face in dealing with legislation like this. The report from Senator Cooney and me goes on:

Government is forever in search of more and more coercive powers. The promise of law and order has become the staple fare of political campaigns. This creates the danger of diminishing the rights and liberties appropriate to people living in the sort of society we all claim we want. The laws we introduce take from our society the very attributes we declare we most treasure.

There is little attempt in this legislation to accommodate the situation in which vulnerable people may be placed when taken into custody. For example there is no provision made for indigenous people in the way there is under Section 23C (Period of arrest) of the Commonwealth Crimes Act 1914.

In October 1982 Mr Justice King, Chief Justice of South Australia told the Criminal Investigation Bureau of his State:

`I emphasise the need for retaining a proper sense of perspective and proportion because anti-crime zeal can easily degenerate into hysteria and bring in its train greater evils than those which it aims to cure. Crime to a great extent is a by-product of liberty. Wherever men and women are free, a proportion of them will misuse their freedom. Probably the crime rate could be considerably reduced by curtailment of the citizen's freedom of expression and action. The price would surely be too high. Rules of law which protect the citizen against arbitrary arrest and detention, against unfair treatment while in police custody, and which protect his home against arbitrary invasion by persons in authority, must be maintained. Any reduction in the crime rate purchased at the cost of the loss or curtailment of genuine civil liberties would be purchased at too high a price.'

On the 28th July 1983 Mr Frank Vincent QC, as he then was, made the following statement at the Crimes Commission Conference held in the Senate Chamber in the old Parliament House.

“This and every other community have suffered from crime, organised and disorganised, throughout their entire histories. Yet, we are being subject at the present time to an amazing amount of propaganda which has been introduced in the media in the form of assertion, all of which are likely to engender considerable fear and apprehension in an already fearful community.”

No law now operating in Australia enables authorities to take people into custody solely to gather intelligence from them—

No law does this. The report continues:

Proposed section 34D—

that is, the proposed new section—

of the Australian Security Intelligence Organisation Act 1979 is exceptional. The person is detained not because he or she has committed an offence, or, is under reasonable, or indeed any sort of suspicion, of having done so. He or she is confined because “the prescribed authority is satisfied that there are reasonable grounds for believing that a warrant will substantially assist the collections of intelligence ...” This prejudices the worth of our human rights.

This is radical legislation. It takes away a number of those attributes we have until now held as citizens. They include the ability to walk abroad, confident that we will not be taken into custody without having committed a crime or without having fallen under reasonable suspicion of having done so; the ability to have access to a lawyer of our own choosing when detained; the ability at all times to tell our family our friends our employers and our associates where we are and under what circumstances; our ability as parents to know where the authorities hold our children; the ability for us to attend our own doctors and dentists whenever we are in urgent need of them.

The appropriate course to take with this legislation is to dispense with it.

Barney Cooney had great insight—after a life in the law community and then in this Senate—into the fundamental of our democracy. We should protect the civil liberties which underpin it and which have been written into law over centuries. Those centuries entailed world wars, emergencies and civil insurrection, but they have withstood them. This ASIO legislation crosses the line. Indeed, the Sydney Morning Herald pointed out the same thing in an editorial of 16 September, saying:

Meanwhile the Howard Government is pressing forward with proposals to give ASIO powers of arrest and detention, akin to police powers. They are so different from the powers which define ASIO's existing role of intelligence gathering that they cross a line. The Government says they are necessary to meet an increased threat from terrorism. But they are not a mere increase in existing powers. Rather, they change the nature of ASIO to a secret police organisation.

Other speakers have pointed to the submissions to the committee looking into this matter—not least that of Professor George Williams. In the Canberra Times on 1 September this year, anarticle by Lincoln Wright stated:

According to Professor Williams, the Government's plan to give ASIO the power to detain people incommunicado represented the biggest crisis for Australian democracy since Sir Robert Menzies tried to ban the Communist Party in 1950.

Professor Williams said that the ASIO bill has to be sunk. He believed, after talking to the Labor Party and the Greens, that it had been sunk. He said:

It's clear the ASIO Bill can't survive this Senate process ...

He said the bill was rotten to the core and he also said:

The Bill would confer unprecedented new powers upon ASIO that could be used by an unscrupulous government.

As Senator Nettle pointed out earlier, he said:

It was part of the apparatus of a police state, and would not be out of place in General Pinochet's Chile.

These are startling statements grounded in a real analysis of this legislation that none of us can or should ignore. It is very important that we get this legislation right. It is fundamentally important to our society. I reiterate what was being said in some of those quotes earlier—that there is a difficult balance between the law and the rights of people to absolute freedom. But this legislation crosses the line in invading those freedoms in a way this country has never seen before. That is why Senator Nettle and I support the Labor Party's amendment that this should go to inquiry and that the matters involved—including the secret detention, without rights, of children—should be very carefully scrutinised again. We will support that amendment. It gives us, the whole Australian community, time to think again. I move an amendment to the second reading amendment moved by Senator Faulkner. I move:

1) After subparagraph (b)(v), insert:

“; and (vi) the implications for civil and political rights of the bill and any proposed alternatives.”

I feel that that amendment may well be adopted. This will ensure that if there is to be an enhancement of the powers of the Australian Federal Police, or indeed some other body set up to implement the provisions of this legislation, it is done with a full understanding of what that will mean for civil and political rights. That is something that Senator Nettle spoke strongly about when we were dealing with this matter last week.

Finally, the word around the corridors is that in the very near future the government may move to make this an urgent bill. Let me comment on that. A move by the government to guillotine the debate on this bill would be outrageous. Here it comes: `We're getting the government to move to make this a matter of urgency.' That is simply the government using this debate about this important bill for political purposes in the wake of the dreadful tragedy in Bali. There was no flagging of an urgency motion last week. This bill, of all bills, needs a full second reading debate, a full committee debate and it should be—and will be, I believe—referred to a committee so that Australians can feed into it.

Let me reiterate that the government, and indeed ASIO, already has enormous powers to deal with criminals and those who plot violence in our community. Let me again refer to that Canberra Times article by Lincoln Wright. It begins with this:

With the right warrant, ASIO can bug your phone, read your e-mails and put a concealed microphone in your house or on your person. And the Government wanted it to be able to do much more.

Let us scrutinise that with the diligence with which we scrutinise bills on a whole range of other matters, taxation bills included. Is this bill not as urgent or important, in terms of our close scrutiny of it, as bills dealing with housing, taxation, education, stem cells and a whole range of other matters? Of course it is, because this bill does cross the line. This bill would change the way our democracy works and would change the balance between the need for law and for agencies to be able to protect citizens through imposing that law, and our basic and fundamental civil liberties.

For the government to guillotine the debate on this bill would be outrageous. That would be saying, `We want to rule by executive here. We don't want the parliament vetting what we do. We want to eliminate the Senate and parliamentary debate on one of the most fundamentally important bills that we could ever see before this chamber.' I appeal to senators throughout the Senate not to allow the Senate to be trampled by the executive, by Prime Minister Howard, in this way. It is an outrageous move by the government, and the Greens will be absolutely opposing that. Let the government put its point of view in here and convince us, if it has a different course of action. When you get a government which says, `No, we won't have debate; we want to stop the debate,' you know it is a government which has a point of view which it cannot substantiate.

There may be a political point of view in this but, unlike the government, we Greens recognise that the community is going to have to live with the outcome of this legislation forever and a day. It sets in train fundamental changes. If the government can justify that, let it debate it. Let it not guillotine it. That is not a democracy. That is moving across the line. I have never heard of a government moving on fundamental legislation like this to gag debate in the parliament on our basic liberties, our basic freedoms, the under-strappings of democracy itself. I doubt whether even back in 1950 the Menzies government tried to guillotine debate on the legislation it was putting through to ban the Communist Party. The government should think again about that. I have no doubt that this government values democracy and liberties in this country no less than we do, but it is making a mistake if it thinks that the best way to safeguard these freedoms is to prohibit debate. That in itself shows that the government may have lost its way here. It should withdraw this motion for a declaration of urgency. One can see the politics that are in it. I think they are pretty base politics, but they are there and the Senate will have to deal with that. The merits are not on the government's side.