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Tuesday, 3 June 2003
Page: 15792


Mr McCLELLAND (5:49 PM) —The Leader of the Opposition has indicated the opposition's support for the Criminal Code Amendment (Hizballah) Bill 2003 and has noted that the government's introduction of that bill followed his introduction of a private member's bill for the purpose of proscribing the Hezbollah external terrorist organisation. The Leader of the Opposition detailed why that bill is necessary, why his bill was moved and why Hezbollah should be proscribed, it having been involved in several terrorist incidents that have been documented, including being responsible for the death of 241 soldiers and, more recently, being implicated in the attempted shipment of Iranian-manufactured arms to Israel on a vessel. The position of the Australian Labor Party is firmly to protect the Australian people, and to protect the Australian people specifically in this modern world where, unfortunately, terrorism is a reality—regrettably, more so, as the governments of the United States and the United Kingdom have acknowledged, as a result of our participation in the war in Iraq.

Having said that, the more general bill, the Criminal Code Amendment (Terrorist Organisations) Bill 2002, we believe, is flawed in principle and is probably also constitutionally flawed. I will go through the reasons for that. Firstly, in terms of dealing with the general issue of proscription—and it must be appreciated that individual prosecutions of people involved in terrorist organisa-tions can be brought—we recognise that proscription is a very symbolic thing in declaring, if you like, society's abhorrence, disdain or disgust for organisations that foster, promote or are involved in terrorist activities. For that reason, we recognise—and have recognised—the situation in respect of organisations proscribed by the United Nations or, in the case of the Hezbollah external terrorist organisations, effectively proscribed by the parliament.

Returning to my reference to the war on Iraq, there is controversy now in the United Kingdom, in the United States and in Australia regarding the reliability of security information that formed the basis of the intervention for removing and dismantling weapons of mass destruction. Those weapons have not as yet been found. Certainly much of the security information was unreliable and, it appears, even exaggerated. We must appreciate that the proscription of organisations will be based on proven incidents, as in the case of the Hezbollah external terrorist organisation, but will also be based on security information. It makes it therefore imperative that the procedures are in place to test that information before the serious consequences occur.

The consequences are indeed serious, not only for the organisation but for anyone involved who could face up to 25 years imprisonment. That is why it is so terribly important to get the procedures right. It is not good enough for us as legislators to say that everything is okay. Dennis Richardson, the head of ASIO, is a decent and competent man and—you do not like to admit this about your opponent—Daryl Williams, the Attorney-General, I would agree is a decent and competent man. But you have to have systems in place. Those decent and competent men are still making their assessments on the basis of security information which, as we have seen, is unreliable. Therefore, you need procedures.

People will say, `These men are decent people. They would not proscribe organisations lightly.' I accept that. People will also say that the prosecutorial discretion that will apply for Federal Police officers or whomever it may be—the Director of Public Prosecutions—determining to bring prosecutions will also be exercised in a pragmatic and sensible way. Indeed, others refer to a culture of fairness, which fortunately exists in our criminal justice system, as providing safeguards. But I would suggest to people who argue in that way to look at the reality not only in terms of my words but in terms of the fact that, if passed, these laws will remain on the statute books for a long period of time.

For instance, proscription powers—or the power to declare an organisation an unlawful organisation—were brought about by the Crimes Act as long ago as 1914. They remain on the statute books some 90 years later. Again, I will not use my words about the need for caution but the words of Justice Dixon, as he was then known, in the famous and very relevant to this discussion Communist Party dissolution case. Bear in mind the intensity of the debate around the banning of the Communist Party when Australia was involved in the Korean War. Justice Dixon said:

History and not only ancient history shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power. Forms of Government may need protection from dangers likely to arise within the institutions to be protected.

I would agree that Daryl Williams is not going to override our constitutional fabric and arrangements. But who are we to predict what will occur between now and the next century?

Those comments were made 50 years ago, but I would submit them to those arguing that we have to look beyond the short-term political controversy and the short-term political cycle. We as legislators—custodians of the statute books—must put in place laws that will withstand that pressure from a future Attorney-General or officeholder who may exploit excessive power in his or her hands. I would submit that the government's bill does give excessive power to the Attorney-General. Procedure is essential and, indeed, it is probably essential to protect from challenge the legislation arising from this bill if passed. I refer again to the Communist Party dissolution case, where the High Court held that the Governor-General could not make an executive decision to determine an Australian citizen was a communist, because it involved a member of the executive—albeit at the highest level—exercising judicial power even in circumstances where a person had the opportunity to exploit a reverse onus situation to challenge that decision.

In the case of this bill, again, we are talking about executive proscription—the act of the Attorney-General proscribing an organisation. The Attorney-General has said that his bill does not face the same constitutional impediments as were identified in the High Court in that case because—as the previous speaker also mentioned—there is a process for judicial review in place. Other commentators, however, have looked at that process for judicial review and found it is extremely limited. Essentially it is directed at whether the Attorney-General has a reasonable opinion that the criteria have been satisfied. It is essentially based on technical ADJR principles about relying on irrelevant information, taking irrelevant information into account or making a decision that no reasonable officeholder could make—those sorts of technicalities. It would not address the merits of whether the organisation should or should not be proscribed. On that basis, commentators have suggested that this bill has a very big question mark as to its constitutionality. I agree with the previous speaker: it is in no-one's interest for this House to approve, particularly in such a serious matter, a bill that is unconstitutional. If the whole proscription regime falls down because it is unconstitutional, it may simply result in not one but several terrorists being let out on the street.

The Attorney-General, being the good lawyer that he is, would be well aware of the comments of the High Court of Australia in the Crown v. Hughes in 2000 where the court said:

The more drastic the consequences for those affected, the more vigilant will be the scrutiny of the impugned law, measured against the constitutional warrant.

That is, the Constitution of Australia. Further, they said:

Under our Constitution, criminal liability and punishment, when provided in a federal law, must be supported by demonstrable constitutional authority. Convenience and desirability are not enough if the constitutional foundation is missing.

That is the court saying, `Listen, if you're going to lock people up, make sure you are on solid constitutional footing.' I do not think the Attorney-General would be receiving advice that this legislation is without difficulty. There are issues of state references of power and issues of external references of power. But running through this thread is the fact that executive power is intervening in the exercise of judicial power. That is a thread which is at the heart of our constitutional foundation. The law in principle and in reality offends that fundamental guiding and foundational principle of our system.

Having criticised the system, I would acknowledge that it is appropriate for there to be a fair and reasonable procedure in place, and others have commented on what that could be. Sarah Pritchard, a highly respected Sydney barrister, writing for Bar Brief in the winter of 2002 commented:

The vesting of a far reaching power to proscribe an organisation solely in a member of the executive, without any safeguards whatsoever, is deeply disturbing. Surely, such sweeping power should be vested in the judicial branch of Government.

In her passage she referred to a precedent that exists in part IIA of the Crimes Act, which I referred to, which enables the Attorney-General to apply to the Federal Court of Australia for an order that an organisation be declared to be an unlawful organisation if it is involved in various forms of seditious conduct. That procedure involves a `show cause' procedure.

Recognising the reality that you may not be able to serve these organisations, it is possible for the service to be effected by notification in gazette or by publication in a newspaper where you understand the organisation may be located. The organisation is afforded procedural fairness. They have the opportunity to come along and argue why they should not be proscribed. Indeed, there is a review process of that proscription before a full court of the Federal Court of Australia. There is no reason, given the Federal Court's ability to act urgently, that procedures for interim relief or indeed ex parte orders could not be inserted in such a form of judicial oversight of the proscription regime.

The suggestion by Sarah Pritchard has also been echoed by Professor George Williams of the University of New South Wales, an expert in constitutional law. He said:

The separation of powers, including the notion that power must not be concentrated in any one arm of Government, suggests that any proscription power should be vested in a court, or at least must be subject to a more strict form of scrutiny by a court.

They are wise words. They are based on principle. Moreover, they are based on advices to this bill or legislation or a scheme for proscription withstanding constitutional challenge.

The government will argue that such a scheme would require the Attorney-General or the government to present to the Federal Court highly classified information. Yes, that is the case, but that is the situation now in respect of the prosecution of national security offences—that is recognised. But, moreover, it must be recognised that, even in the limited form of judicial review that exists under the current bill, similar complexities will inevitably arise. That was noted in an early Bills Digest on an embryonic form of this bill. Bills Digest No. 126—in, I think, a balanced way—said:

There may also be strong arguments in favour of judicial control. Proscription is based on the existence of some connection between the activities of individuals or organisations and specific terrorist offences (or the terms of a Security Council Resolution, or the possible danger to the security and integrity of the Commonwealth). Moreover, it creates dire consequences in terms of severe criminal liability for the individuals involved and for third parties. Whatever the arguments in favour of Executive control, including the possible urgency and complex policy issues attached to proscription decisions, it is hard to suggest that the task is beyond the capacity of the Judiciary. The fact is that superior courts have been empowered to perform a similar function under the Crimes Act 1914 since 1932. Moreover, courts will inevitably become involved in review of the bases behind the declarations at the stage when prosecutions are brought under proposed section 102.4.

What we are saying is: rather than have a judicial review process, albeit limited, at the back end of the proscription process, where there has been no procedural fairness at the start, why not bring the judicial scrutiny and the role of the judiciary to the front end of the proscription process where there can be the opportunity for due process and so forth?

The community would have a greater trust in the efficacy of such a process, and this would avoid resentment in some quarters. Regrettably, in modern day Australia, as a result of irresponsible reporting on the part of some commentators, there is a perception that any organisation with a Middle Eastern sounding name is the subject of potential proscription by the government. It is not in the interests of society for there to be that perception out there among any element of society. If there is a fair, transparent judicial process, where due process is afforded to the organisation and potential individuals involved, it will have much greater public support and will, as a result, have a far greater impact than simply one man—albeit a high office holder—proscribing an organisation.

In conclusion, the Labor Party does mean business when it comes to terrorism. The Leader of the Opposition has referred to the fact that we have a far more sophisticated administrative arrangement through our model for the development of a department of homelands security to bring under the one umbrella the Federal Police, ASIO, Customs and the coastguard—to literally bring them under not only the one command structure but also the one departmental roof, so to speak—and our more sophisticated coastguard policy. Our support, moving prior to the government introducing the Hezbollah-specific bill, also confirms that we view with disdain terrorist activities and would support the proscription of such reprehensible organisations.

However, at the end of the day we are legislators, as I say; we are custodians of the statute books for but a short period of time. We have a responsibility to ensure that any laws we put on the statute books are laws that are sustainable for an indefinite period of time despite whatever challenges and pressures may confront our nation. The laws that have been proposed by the government in this instance give excessive power to a member of the executive, an excessive power that could have significant repercussions for Australian citizens. Terrorism is significant and it must be addressed with all the vigour of this parliament from both sides. What we are saying is if the Attorney-General is prepared to sit down and negotiate sensible procedures that involve appropriate safeguards that withstand constitutional challenges and that have support in the community because they are seen as fair and reasonable, we will be more than willing to sit down and have discussions with them. (Time expired)