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Lateline

Wednesday 19 October 2005

Premiers of Victoria and Queensland discuss counter-terrorism legislation

TONY JONES: Back now to our top story. Towards the end of the 19th century, Germany's first chancellor Otto von Bismark wrote that there are two things the public should never see - the making of sausages and the making of laws. Well, since the ACT Chief Minister, Jon Stanhope, posted the Government's draft anti-terror legislation on his website, the Australian public have had a unique insight into that dark art. Several of the state premiers, who signed up to support the new laws at the recent COAG meeting, have said Stanhope shouldn't have done it, the draft should have been kept secret for their Cabinets to examine without public pressure. But now, with so much detail out in public, two of those premiers have told us there's a lot in the draft they never agreed to. I spoke to the Victorian Premier, Steve Bracks, and the Queensland Premier, Peter Beattie, in their respective offices earlier this evening. Thanks to both of you for joining us.  

 

STEVE BRACKS, VICTORIAN PREMIER: Tony, good to be with you.  

 

PETER BEATTIE, QUEENSLAND PREMIER: Likewise.  

 

TONY JONES: If I can start with a question for both of you. Now that the detail of the proposed anti-terror laws is out in public, thanks to Jon Stanhope, are either of you having any second thoughts about aspects of the legislation? Steve Bracks, first to you.  

 

STEVE BRACKS: Well, Tony, I think the key issue is that we forged at COAG a set of recommendations, which are now going to translate into laws and legislation, which each of our cabinets will consider and, so, we have no second thoughts about the COAG agreement. The COAG agreement was forged in the knowledge that there would be safeguards in place and those safeguards include judicial oversight for all the laws that are brought in. They include legal representation for those people who are apprehended under preventive detention or control orders, and includes also an opportunity for a review and a final sunset of those arrangements. Now, they're the matters we agreed to. The Prime Minister, as I understand it two days ago, said COAG would be implemented no more, no less and that's exactly what we will consider as a Cabinet. No, we haven't had second thoughts. But, could I say that, matters that are over and above COAG which weren't considered, we won't be implementing. That will have to go to a whole set of new recommendations, if that's required. We will only implement what was dealt with at COAG.  

 

TONY JONES: Let me get this straight - still with you Steve Bracks - you never saw the draft legislation when you signed off on the agreement, is that right?  

 

STEVE BRACKS: Well, the draft legislation wasn't in place. And, of course, there is going to be several aspects of the draft legislation And I understand that the matters that Jon Stanhope put on the website are changed. There is going to be further developments on those. And, of course, under our Westminster system of government, Cabinets, of course, reserve the right to deal with these matters to assess what we will put in it as legislation, whether we assess - that is in accord with the COAG agreement - and that's the matter which we will put out for public consideration in each of our parliaments.  

 

TONY JONES: Peter Beattie, judging from what Steve Bracks is saying, there's a lot of water to pass under the bridge yet. The draft legislation that we're all looking at, the detail of it, may be very different from what you finally agreed to. Is that right?  

 

PETER BEATTIE: Well, look, I don't have any second thoughts - to come back to your original question, Tony. There was one oversight in that the public interest monitor that Queensland insisted would apply in Queensland, wasn't in the draft legislation sent to us. And I've written to the Prime Minister about that and I think that was just an oversight. I know that will be corrected. And I agree with Steve Bracks. I mean, the reality is we will honour the agreement that we signed at COAG and if the legislation reflects that agreement, we will sign off on it. Now, if there are other matters, for example shoot-to-kill, that wasn't in the agreement we signed at COAG and, of course, that's a different issue all together. Now these are draconian measures. We would never have agreed to these in a fit normally, but when you're faced with a terrorist threat like this you have to have a response and frankly, as Steve Bracks knows better than me, he's got a major event with the Commonwealth Games coming up and you just can't ignore these international threats.  

 

TONY JONES: Alright, let's have a look at some of the detail that we are seeing in the draft legislation, which both of you have obviously seen, and you said you didn't agree to a shoot-to-kill policy, but there are provisions in the draft legislation relating to people who are apprehended on preventative detention orders. Now, Steve Bracks, I think you said yesterday too you were unaware of these provisions when you signed up.  

 

STEVE BRACKS: Well it wasn't a matter of being unaware - they weren't discussed, they weren't proposed at the COAG meeting that we had. Yes, we signed on to preventive detention with some safeguards, that is that there would be a judge or judicial officer required to issue the order for a preventative detention, that you would have legal representation, all of those safeguards were there. But the implementation of that, how you do it, there was no suggestion that that would be done with a shoot-to-kill mechanism and, of course, that is not part of the COAG agreement and won't be implemented. So when it comes to our Cabinet, we will implement preventative detention in accord with what was agreed at COAG and the shoot-to-kill recommendations were not agreed and so we will not be implementing it. That's why we need to... 

 

TONY JONES: Does that mean they should, in fact, be struck out of the legislation because the Attorney-General has talked about this in some detail already. He says - he's quite correct in saying this - "the provisions were lifted more or less word for word from the Federal Crimes Act." Now, that effectively does give police the power to shoot someone who is attempting to escape by fleeing, provided the police believe that they're doing so to prevent serious injury to another person. But does it concern either of you that what's being set up here is precisely the same circumstances, effectively, that someone fleeing from possibly plain clothes police who've come to apprehend them on a preventative detention order, the same circumstances as was set up in London when the Brazilian who wasn't a terrorist was killed?  

 

STEVE BRACKS: Well, can I just answer that, Tony, by saying that I think the existing laws are sufficient and suitable. The existing federal legislation, the existing legislation we have in each state that we operate under, we believe is suitable. If the Federal Government, separately from COAG, believes they need more powers, they need to put that case publicly to their own party, to their own Cabinet, and if that requires any state legislation, we would have to agree with that.  

 

TONY JONES: Peter Beattie, according to the draft legislation, the object of preventative detention is to either prevent an imminent terrorist attack from happening or to preserve evidence of, or relating to a recent terrorist attack. Now, in both cases, the person being apprehended may not in fact be charged with any offence. They may simply be witnesses to an offence. So would it be wrong, therefore, when apprehending someone on a preventative detention order to have up your sleeve the power to shoot them if they run away?  

 

PETER BEATTIE: Well, look, I agree with what Steve said. The reality is that wasn't included in the discussion. The existing laws do provide certain circumstances where shoot-to-kill applies and they have to apply in those circumstances. There are also certain circumstances in state laws where that applies, particularly if an officer is in risk of his own life or her life. Now, I think those laws are adequate. The whole idea of detention in these circumstances was designed to prevent somebody from committing a terrorist act, and they were detained and prevented from doing so. That's the circumstances. Now, the police will have...  

 

TONY JONES: But can I just interrupt you there? It does goes beyond that, because it could simply be a witness to a terrorist act.  

 

TONY JONES: Yes, that's exactly right.  

 

TONY JONES: For example, it could be the 16-year-old brother of a terror suspect who might or might not have information. Now, should lethal force provisions apply in that case because that's what the draft legislation suggests will be the case.  

 

PETER BEATTIE: I was about to go on and say, Tony, that's not what would apply in those circumstances. So, no, it shouldn't be, in my view, included. These provisions, in my view, based on what we've seen and what is being discussed here do need and require some changes, but no-one should misunderstand the position. We will implement what was agreed to.  

 

TONY JONES: Alright, Steve Bracks, the detail, of course, is the interesting thing here and one must take worse case scenarios when making dramatic changes to national laws. Now, just imagine this possibility. The 16-year-old brother of a terror suspect who is wanted by Federal Police on a preventive detention order because he may or may not have information. Someone comes along to apprehend him who's in plain clothes. He runs away. He runs towards a railway station. He may be wearing bulky clothing - exactly as in the London case. The police apprehending him might think he's wearing a bomb belt and shoot him. That's contained within the draft legislation. Should it be or shouldn't it be?  

 

STEVE BRACKS: Well, I've already said, Tony - and I agree with Peter Beattie on this - that we will implement exactly what we said about preventive detention at the COAG agreement, and that did not include an extra provision to amend or adjust laws in relation to shoot-to-kill legislation. Existing laws, we believe, are sufficient on that basis. But could I say about your case on preventive detention? That case that you mentioned about a 16-year-old, who might be a brother or an associate of someone who is suspected of terrorism, that case would still need to go to a judicial officer. The courts, a magistrate, a judge, would still need to decide - is the case strong enough? Is there a threat to the safety of Australian citizens from terrorism? Has the threshold been met for there to be an order for a preventive detention in the first place? That's number one. Number two, a lawyer would be involved. And, number three, there will be an appeal process, so you can appeal against that as well. So, you know, there are the safeguards built in and I think you need to recognise and acknowledge that and that will be built into the legislation. Now, I don't think we should be too alarmist. I think there's a lot of alarmism there on what was in early drafts, which are not the drafts that will be considered by each of the state and territory cabinets and therefore the parliaments.  

 

TONY JONES: Well, the problem is that the Attorney-General has come out and said and explained why that provision was lifted from the Crimes Act and put in this new legislation. So it does look like it's going to be in there, in the legislation - draft or otherwise.  

 

PETER BEATTIE: Except, Tony, you've got to remember this is part of a COAG agreement and there's consultation with the states and during this there will be some debate and comments expressed by various people, including the Attorney-General, but at the end of it we have to take these matters back to our own cabinets and, indeed, our own parliaments, as Steve Bracks has indicated, and we will honour the agreement.  

 

TONY JONES: But, Peter Beattie, does this mean that you can actually make amendments to the federal legislation or make sure... 

 

PETER BEATTIE: Tony, there are two aspects to this. Part of this the Commonwealth can do within their power, part of this they need to do within state power. Out of this we can come up with a sensible agreement. But I want to make this point, Tony. Look, these examples are the sort of things that need to be taken into account when there are ongoing discussions between the Commonwealth and the states, but we will go into it with a positive attitude to try and reach agreement. We don't want to wreck every part of the stage.  

 

TONY JONES: But you can change it. You do have the power, you premiers, to change this legislation.  

 

PETER BEATTIE: Look, that's why there are discussions, Tony. That's why there's ongoing consultation. That's why a draft was produced and we will match up with what is in the COAG agreement to what was put before us. But we will try and reach agreement. We are not trying to undermine the Commonwealth.  

 

STEVE BRACKS: And, Tony, can I just say... 

 

TONY JONES: Steve Bracks, go ahead, sorry to interrupt.  

 

STEVE BRACKS: I can guarantee you we will also - and I agree with Peter Beattie - we have a commitment to implement the COAG agreement and we will do this in a complementary way with the Commonwealth and, of course, there will be discussion on certain matters, but in the end I can guarantee you there will be agreement and it will be the agreement which was reached at COAG.  

 

TONY JONES: OK. But that still does leave a lot of detail up in the air, Steve Bracks, if I can stick with you and a hypothetical case. Let's say that 16-year-old boy is picked up without being killed and he's put in preventive detention. If one of his schoolmates finds out he's in preventive detention and tells another schoolmate, or tells a teacher, then that person is liable to five years in jail under this legislation - is that right?  

 

STEVE BRACKS: Well, we'll examine that very closely and all of this. I mean, this is a very unusual situation that we are discussing draft legislation before our cabinets have had time or the opportunity to see it. This is very unusual.  

 

TONY JONES: Peter Beattie, I appreciate what's being said there, but in the real world think of the case with the 16-year-old who tells his schoolmates that his friend is in preventive detention. He's subject to five years in jail. In the real world, kids are going to talk to each other about things like this, aren't they? Should there be penalties about that for gossip?  

 

PETER BEATTIE: Oh, look, Tony, I agree with all of that, but, frankly, we can negotiate all these things with the Commonwealth. Look, we had arguments with the Prime Minister, but in my experience as a Premier of seven years who has dealt with him, he's never walked away from the commitment he's given or word he's given. He signed an agreement with all of us and it's not unreasonable for us to expect him to honour it. He's never breached his word in the past, I fail to see why he would on this occasion. If we have legitimate concerns - and we will have some - then it's a matter of consultation to work these things through and we will. We are going to work through... 

 

TONY JONES: Do you have concerns about the issues you've just been raising with me?  

 

PETER BEATTIE: Yes, I do. Of course I do. We will work those things through. But, Tony, before you leave this point, don't forget this - for heavens sake, we've got a threat of terrorism in the world, including Australia. The premiers have got an obligation to try and reach agreement with the Prime Minister in the interest of national security. If we've got issues, and we were the ones who pursued these matters - Steve Bracks pursued it vigorously and I supported him on things like a sunset clause. We have insisted on the most appropriate safeguards to protect people. I've insisted on a public interest monitor being involved. There are checks and balances in this that I believe protect Australians. Of course more work needs to be done, but we're not going to throw the baby out with the bath water because there are issues that need to be addressed and they will be.  

 

TONY JONES: OK, Steve Bracks, the outspoken Liberal backbencher Petro Georgiou said yesterday that it's not good enough that the operation of these laws is overseen only by the Attorney-General. He wants a personal review mechanism to regularly report to federal Parliament on the operation of these laws, not just a one-off annual report from the Attorney-General. Do you think that's correct? Do you think there should be a regular reporting mechanism to parliamentarians?  

 

STEVE BRACKS: No, I think the current arrangements are suitable and I think there is a reporting arrangement to Parliament. There's accountability, of course, for a judicial oversight and an appeal mechanism in place. I think we've gone the extra miles. We pursued this at the COAG discussions we had, we pursued these safeguards, and the safeguards we've put in place with dialogue with Peter, myself and others, I think we've done a very good job of having the right checks and balances. I reiterate this, and this is where Peter and I agree completely, we would haven't put the laws in place unless they were necessary. Why are they necessary? Because there's a worldwide threat of terrorism in which Australia is independent immune. And we are not immune. That's the reason we're doing it, but we're doing it with safeguards and that's the important matter.  

 

TONY JONES: Alright, we're just about out of time. A final quick question to both of you. You would expect the draft legislation we've seen to be vastly amended, judging on what we've just seen tonight?  

 

STEVE BRACKS: Yes, I do. And I think that if you want a guide to what the legislation will be like, look at the COAG agreement. It will reflect that. It will reflect that in our Cabinet. It will reflect that when we go to our own parliaments for consideration. It will be the of the law we agreed to at COAG.  

 

TONY JONES: Can I go to you Peter Beattie? Sounds like you still have a lot of reservations about the detail of the draft legislation and you want to see a lot of that changed?  

 

PETER BEATTIE: Sure, there will be change, but the whole concept of a draft is that you work them through and work them through in a constructive and positive way. Of course there will be change. Tony, I don't want there to be any misunderstanding about this. We want agreement with the Commonwealth in the national interest. Let me tell you, if we ended up with a position where we had a terrorist attack in this nation and we weren't ready and we did haven't the laws in place, let me tell you whose heads would be on the block - the Prime Minister and every state leader in this nation. And, frankly, we've got a moral obligation to ensure that we get the appropriate protection in place to safeguard Australians and that's exactly what we will do.  

 

TONY JONES: Alright, Peter Beattie and Steve Bracks, on that note we'll have to leave both of you. Thank you for taking the time to come and talk to us.  

 

STEVE BRACKS: Thank you, Tony.  

 

PETER BEATTIE: Thanks, Tony.