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Lateline

Monday 17 October 2005

Shadow Minister and Law Council President discuss proposed anti-terrorism laws

TONY JONES: Now returning to our top story - the Federal Governm ent's new counter-terrorism laws. They've caused concern among civil libertarians and lawyers, but got the backing of the Labor premiers. At the same time, Government backbenchers have forced some changes to what has been described by some as draconian legislation. To discuss their implications I've been joined by the Opposition's homeland security spokesman, Arch Bevis, and by the president of the Law Council of Australia, who's in Sydney, John North.  

 

Thanks to both of you for being here.  

 

Now, Arch Bevis, have you managed yet to read the legislation posted by Jon Stanhope on his website?  

 

ARCH BEVIS, SHADOW MINISTER FOR HOMELAND SECURITY: I have certainly managed to have a good enough look to know that our concerns last Thursday about the importance of a parliamentary inquiry were absolutely correct. These things are important matters. You have to get the balance right. You don't do that if you rush it, and the simple fact is John Howard's process, when we return in a fortnight, and that's not the way you get good laws, especially in areas like this that are very sensitive.  

 

TONY JONES: Let's talk specifics, though. What provisions in the legislation that you have seen are of concern to you?  

 

ARCH BEVIS: We've only just, like most Australians, had an opportunity to look at this in the brief. We've got two weeks before Parliament resumes. Already we're hearing reports that there are some changes apparently being considered or made by the Attorney-General and the Prime Minister, so we'll spend the next little while having a close look at it and talking to a range of people in the community who have a clear interest in this. I don't want to pre-empt that.  

 

TONY JONES: But you've seen the draft legislation. I've seen the draft legislation. John North here has seen the draft legislation. It's pretty clear what's in there at the present moment. Is there anything in there at the present moment in that draft legislation, which is of concern to you?  

 

ARCH BEVIS: Look, before the COAG meeting, Labor flagged a number of areas where we thought it was important for principles to be adhered to, so questions like sunset clauses are fundamentally important and I want to see the fine print of that.  

 

TONY JONES: Ten years, the sunset clause. You don't need any fine print, there's 10 years. That's what it is. Is that too long?  

 

ARCH BEVIS: In fact, we do need some fine print, because you're right, the bill does talk about 10 years, but in fact the COAG meeting spoke about a five year review. I want to see what the detail of that five year review is, how it's going to be done and what will flow from that review. But that's one of the examples, and whether we like it or not, it happens to be the case that the devil is in the detail in these things. So we do need to see that fine print to get a clear understanding of how some of these issues will be dealt with.  

 

TONY JONES: Alright.  

 

ARCH BEVIS: And whilst the bill gives us a bit of a guide, I've got to say, it's short in a number of areas.  

 

TONY JONES: Well, it does more than give you bit of a guide, to be fair. Let's go to John North, specifically looking at the draft legislation, what specific provisions are you worried about?  

 

JOHN NORTH, PRESIDENT, LAW COUNCIL OF AUSTRALIA: The major ones are preventive detention and control orders, because that is going to enable the Government to lock up people who they do not reasonably suspect of having committed a terrorist act.  

 

TONY JONES: But they could already do that, couldn't they, under the previous legislation, for seven days, at least.  

 

JOHN NORTH: They have been given seven days for about two years and they've not used that seven days once, so what has changed to make them now demand 14 days?  

 

TONY JONES: Alright. Explain to us what are the grounds set out in the legislation, if there are any grounds set out in the legislation, for how someone qualifies for being put under a control order, or being put into detention?  

 

JOHN NORTH: A senior AFP police person of superintendent rank or above asks a judge or magistrate of the Federal Court to issue the order. The person concerned doesn't know about it. They can't tell members of their family if it occurs and their lawyer, if they get one, is monitored.  

 

TONY JONES: Well, how does a judge or a magistrate know what grounds are actually applicable for a control order?  

 

JOHN NORTH: The AFP will have to present them with sufficient evidence. The difficulty is, these are really people in legal limbo land, because the AFP, if they had enough proof that they were involved in terrorism, could arrest them, charge them and bring them before a court.  

 

TONY JONES: Arch Bevis, does any of that concern the federal Labor Party?  

 

ARCH BEVIS: Well, potentially, yes, and that's why the proper process needs to be followed. That's why we need to have a full Senate inquiry. In 2002, when we confronted similar issues after the tragedy of 9/11, these sorts of laws were referred to a full inquiry in the Senate and as a result of that inquiry, a lot of these concerns were delved into, there were major amendments proposed to the legislation and I have to confess supported by the Liberals on that committee as well, and we saw better legislation and better laws as a result. Contrast that to now, where John Howard's proposing to introduce the bill in a fortnight when Parliament goes back, have it dealt with by the Parliament in one week, and give the Senate just one day for a hearing. And these are precisely the details we need to go through in a proper manner with proper scrutiny.  

 

TONY JONES: Are you potentially concerned by the fact that the legislation itself does not set out the grounds for putting someone under a control order or putting them in preventive detention? There are no grounds at all in the draft legislation for that, it's simply an interpretation that has to be made, as we've just heard by the AFP or ASIO and then another interpretation by a magistrate or a judge.  

 

ARCH BEVIS: Yeah, I think there are a number of those concern, and yes I do have questions about those matters that I will be seeking some answers from, from the Attorney-General and from the Government. But, you know, one of the ways in which we traditionally dealt with that is to allow the public sufficient time to look at these bills when they're in the Parliament and allow the Parliament the proper time to actually deal with them as well. None of that's been afforded to any of us at the moment. John Howard, for some reason, has decided to adopt this extreme tactic of forcing things through. And heaven knows why, because at the COAG meeting he was provided with full cooperation by the states and territories and yet he seems to want to ram through...  

 

TONY JONES: But you have a political problem here, don't you, because your colleagues in dtate Labor governments around the country are quite happy for this go through?  

 

ARCH BEVIS: There was an agreement at COAG that all of the governments at Australia came to. If you read the communique from that it was quite broad, in broad terms about the sorts of measures that needed to be taken. Now we're getting to the sharp end of the process where the detail of the legislation needs to be examined and put on the table. Unfortunately, there are, in the bill that we've seen so far, a number of areas of concern that need further clarification, but there are some other areas that just need further details, frankly, and that's the process we have to go through. There is no rush with this. There's no rush with this. We've given a commitment that we'll ensure there's sufficient time in the Parliament for this to be fully debated before the end of the year and still have a proper inquiry.  

 

TONY JONES: Let's have a look at some of those other areas of concern because John North has brought up the shoot-to-kill policy, which is set out in the legislation. Now, the Prime Minister and the Attorney-General say that's nothing more than what's already in the Crimes Act, they're simply taking a section of the Crime Act and putting it into this legislation to give arresting police the same powers that arresting police have in the Crimes Act.  

 

JOHN NORTH: There's two problems with that. The first is that AFP officers may not be in uniform and therefore the person subject to the control order or prevention order might not know they are police and that's what happened in Britain in the Underground, and the second problem is that this is an order in which they are trying to seek an arrest of a person who they do not reasonably suspect of being a terrorist. So how do they get to the point where they can shoot them? They've only put this into the legislation because they want to cover themselves in case they get a London case.  

 

TONY JONES: But what's in the legislation that's different to what's in the Crimes Act? Because, as I've said, both the Prime Minister and the Attorney-General, in fact the Attorney-General says it's been word for word lifted from the Crimes Act.  

 

JOHN NORTH: The Crimes Act doesn't have "fleeing". They've used the actual word "fleeing" in this bill to try to cover that English situation. They must have done it at the behest of the AFP who do not want to find themselves in the same trouble as the UK police are now.  

 

TONY JONES: Do you mean the legislation sets out that someone can be shot at while fleeing? Is that what you're saying?  

 

JOHN NORTH: Yes, with reservations. But the trouble is... 

 

TONY JONES: What are the reservations?  

 

JOHN NORTH: The reservation is that the AFP officer has to reasonably suspect that the person is about to harm him or someone else, and has to yell "stop", and then, if there's no other means of stopping them, they can shoot them. But the crazy thing about this is that it falls within the section in which they do not, at time they go to get the control order, have enough proof that the person is a terrorist.  

 

TONY JONES: So in other words, they can't charge them but they can put them under a preventive order or a control order?  

 

JOHN NORTH: Exactly.  

 

TONY JONES: Arch Bevis, does that worry you, what you have just heard there, how it's spelt out in the draft legislation? It does mention the word "fleeing" and it does sound like it's taking in the London case and protecting the AFP or ASIO against a similar situation?  

 

ARCH BEVIS: There are some caveats in the proposed legislation that deal with necessary force and where there's a belief that there's a terrorist incident or someone's going to come to harm in an imminent situation. That said, yes, I do have some concerns about that. Now, whether or not it complies with the arrangements existing in all of the states or any of the states at the moment, in respect of police powers, is not something in the last two days I've been able to determine. But there again, that's one of the things that people would legitimately be concerned about, that the normal parliamentary process would get to the bottom of. For some reason John Howard doesn't want the normal parliamentary process to be used on this occasion.  

 

TONY JONES: Are you concerned, though, looking at the legislation, looking at the use of the term fleeing in there, are you concerned that has actually been set up to protect the AFP or ASIO in a situation very similar to that that pertained in London when they, the man who was not a terrorist was shot dead?  

 

ARCH BEVIS: I don't think anybody wants to see a situation like that tragedy in London where an innocent person was shot by police in the days that followed the London bombings. No-one wants to see that situation anywhere. It is the case that police in the states today have the powers to use lethal force in certain circumstances. Now, the question here, that needs to be looked at, is whether or not the caveats that exist in this draft bill that John Howard has proposed properly get the balance right. Have we ensured that the necessary safety provisions are there as well as protecting the human rights and civil liberties? Now, that requires some pretty careful consideration taking into account the various existing state laws.  

 

TONY JONES: John North wants to come in here.  

 

JOHN NORTH: I'm sorry, but the existing law, as you stated, covers the situation where they can use lethal force. There was no need to put that in this bill.  

 

TONY JONES: The existing law being the Crimes Act?  

 

JOHN NORTH: Yes, and that they can shoot and use lethal force if they're going to save someone else from being harmed, or themselves from being harmed.  

 

TONY JONES: Let me come back to you, Arch Bevis. You've read the legislation, you've read where it says "fleeing". That means someone who's running away from the AFP or whoever is chasing them, and they could be plain clothes as they were in London, running away, could be shot if the people chasing them believe they present some form of danger?  

 

ARCH BEVIS: Look, I agree, there needs to be something done in respect of the situation with plain clothes police. You don't want a circumstance where someone doesn't know who it is that's yelling out at them to stop. You also need to ensure that the individuals who are the subject of that chase, as it were, have their basic rights protected as well. That fleeing provision does also include some caveats. And I think John referred to them a moment ago - it's not clear in exactly what circumstances that power would pertain. These are some of the things we need to get to the bottom of, Tony, and it's, frankly, difficult, 24 hours, 48 hours after these documents have been made public. This would not be a problem if there was going to be the normal processes followed in the Parliament. The only reason we are in this bind now, the only reason we're all talking about Jon Stanhope's website, is because the Prime Minister proposes to have a truncated parliamentary debate on this.  

 

TONY JONES: Okay. Let me go back to John North with a very specific example. Let's take a 16-year-old boy, call him Ali. He's put in preventive detention. While inside, according to the legislation, the draft legislation on Jon Stanhope's website, he can have two hours contact per day with his parents but all their conversations will be monitored and if there are no translators available, they have to be in English. How does that affect his legal representation?  

 

JOHN NORTH: Well, his legal representation, if he gets it, will be monitored as well, so you don't have any client-solicitor confidentiality. And, of course, his parents and anyone else cannot tell anyone that he is in this preventive detention, or they themselves could face five years jail.  

 

TONY JONES: Arch Bevis, you've read that section as well. That's an extraordinary situation where, let's say Ali's schoolmate finds out that Ali is in preventive detention and tells his teacher at the high school. His friend is then subject to five years imprisonment. Does that sound right to you?  

 

ARCH BEVIS: No. I have to say there have been a few examples that have - both theoretically and the odd one in practice - that have to come up, where you have to wonder about the operation of some of the secret arrangements with respect to the questioning. You can understand the need for there to be some secrecy in certain circumstances where it may impede ongoing investigations and a genuine threat to public security. But to have people for a prolonged period of time, unable to tell their family, their employer, their schoolmates, university colleagues, what's happening, does strike a bit strange. And it would only be in extraordinary circumstances that I could imagine those sorts of powers would be warranted. We need also to have a look, I think, at the processes of accountability, because so far you've been talking about the various powers that exist. One of the things that federal Labor record before COAG is the need for some accountability after the event. So that these sorts of powers require judicial and executive approval, that they require a reporting mechanism back to the Parliament, so that on any occasion these powers are activated, it becomes public and there is some transparency so that these things are not hidden. There needs to be, also, an oversight review - if these powers are being exercised by state police - by the various state policing oversight bodies, your ICACs, your CMCs, those sorts of tribunals. So we need also to look at some of those balancing provisions and they're part of the consideration that Labor will be going through in the next fortnight.  

 

TONY JONES: It's interesting you say Labor, because you obviously mean federal Labor, because state Labor has already made up its mind, it appears, on this legislation. They've agreed to it. Now, they are looking at the detail, but they're doing their own examination, and they say that's enough.  

 

ARCH BEVIS: Well, I think you'll find they've agreed to the principles set out in COAG and have committed to those principles. The legislation has questions in it for all of us. Whether it's lawyers, whether it's state or federal politicians, and even - if we believe the news reports - some Government backbenchers.  

 

TONY JONES: Alright.  

 

ARCH BEVIS: So the detail of these laws is obviously something that's going to be very much an issue in the next fortnight.  

 

TONY JONES: Alright. Now, we've only just scratched the surface here, but I'm afraid in doing so we've used up all our time allotted tonight. So we'll hope, if we can, Arch Bevis to come back and talk to you about this again, because there is a lot more detail to talk to. And John North, we thank you, as well, for coming in tonight to talk about it. Thanks to both of you indeed.  

 

JOHN NORTH: Thank you.  

 

ARCH BEVIS: Thank you.