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Tuesday, 25 May 2010
Page: 4060


Mr DEBUS (5:41 PM) —I rise to support the National Security Legislation Amendment Bill 2010. I thank my colleague for his assistance. Back in 2006, when I was serving as Attorney General in the state of New South Wales, I made a speech that did not meet with universal approval within my own party. I was at the time particularly concerned about the sedition provisions of the new national security legislation and I complained also of the ferocious hostility then being directed by the right-wing media commentariat against any suggestion that human rights considerations were of serious relevance in the response to terrorism. I suggested, indeed, that human rights had been taking a battering from two forces: from terrorist activity and from terrorism laws. I believe I was correct to have had those concerns in 2006 and that a proportionate response to threats to national security was not always achieved at that time.

However, the attacks on New York and Washington in September 2001, and the later attacks in Jakarta, Bali, Madrid, London and, more lately, Mumbai, absolutely require the Commonwealth to maintain and improve the legal framework for our national security. On the other hand, if in our resistance to terrorism we abandon the rule of law as it has been understood in the common-law world, then the terrorists have in significant degree won. I believe absolutely that our culture of equality before the law and freedom of speech is by far the best defence that we have against terrorism. I do not intend to quote myself more than one more time, but I have also turned up a speech that I made introducing terrorism legislation into the New South Wales parliament. I generally justified the law, which complemented the Commonwealth law, by pointing out that in profound ways terrorism was quite unlike general criminal activity. I said:

General criminal activity has never aimed to perpetrate the mass taking of life, the widespread destruction of property, or the wholesale disruption of society in the way that terrorism does.

The national security legislation developed after 9-11 and after the London bombings of 2005 was passed, obviously, in the shadow of quite momentous events, but it was nevertheless passed, bearing in mind that gravity, with extraordinary haste. Technical errors requiring later correction were inevitable. The laws were also, as has since been demonstrated, sometimes careless of their impact on individual rights—that is on the one hand. But they were sometimes insufficiently precise about the exercise of powers absolutely needed by police and intelligence agencies to effectively constrain terrorist activity. It was very hard in the atmosphere of the time to keep an appropriate balance, from the perspective from which I was working anyway. I have already mentioned the commentators who were prepared to treat any reference to human rights as some sort of affront to our national values. One was aware, too, that Prime Minister Howard was on the lookout always for an opportunity to wedge the Labor Party with the suggestion that it was soft on terrorism. He was no more capable of genuine bipartisanship than the present Leader of the Opposition in this respect.

Fortunately the Senate did operate as something of a brake on the attempts of the then government to force headlong passage of terrorism legislation and managed some important amendments. Still, it has taken a number of independent reviews—they were mentioned by the Attorney in his second reading speech—to bring together the balancing amendments contained in the bill before us now. I do, by the way, particularly commend the work of the Parliamentary Joint Committee on Intelligence and Security, and its chair, the member for Brisbane, in this respect. The need for balance is well described by Lynch and Williams in their book, What price security?:

Making a sufficient response to this uncertain threat involves creating offences that recognise the seriousness of the crime of terrorism and granting our intelligence and law enforcement agencies the powers they need to protect us. But this must not be the only approach if we are to win the ‘war on terror’. We also have to ensure that we preserve our way of life—and particularly the basic freedoms and access to justice that are consistent with our position as one of the world’s oldest continuous democracies.

The authors go on to deliver a low blow—they quote Robert Gordon Menzies introducing the national security legislation on the eve of World War II, our biggest ever security threat. Menzies said:

Whatever may be the extent of power that may be taken to govern, to direct and to control by regulation, there must be as little interference with individual rights as is consistent with concerted national effort … the greatest tragedy that could overcome a country would be for it to fight a successful war in defence of liberty and to lose its own liberty in the process.

I am grateful to Robert Gordon Menzies for so precisely nailing the point. I wish particularly to draw attention to the measures in this bill which deal with sedition and treason offences, and also those which implement recommendations of the inquiry by John Clarke QC into the famous case of Dr Mohamed Haneef.

It is exactly to help ensure the quality of balance I have been speaking of that Clarke recommended the appointment of an independent reviewer who will be able, where necessary, to conduct a robust investigation of an intelligence or security matter within any agency of government. The bill extends the present role of Inspector-General of Intelligence and Security so that may occur. At the same time, this bill extends the role of the Parliamentary Joint Committee on the Australian Crime Commission to include the Australian Federal Police. The new committee will be called the Parliamentary Joint Committee on Law Enforcement, and I am certainly among those who welcome its extended oversight.

The joint committee will be responsible for providing broad parliamentary oversight of the AFP and the Australian Crime Commission. The functions of the committee will include monitoring and reporting to parliament on the performance by the Australian Crime Commission of its functions, monitoring and reporting to parliament on the performance by the AFP of its functions, and examining trends and changes in criminal activities, practices and methods and reporting on any desirable changes to the function, structure, powers and procedures of the Crime Commission or AFP. The establishment of this committee implements the government’s election commitment to improve oversight of the AFP.

I held responsibility for both the Crime Commission and the Australian Federal Police from November 2007 until June 2009—that is to say, well after the events investigated by Mr Clarke but during the time when he actually brought down his report. Unlike many journalistic commentators, I have drawn the conclusion that Clarke got the role and situation of the AFP about right. At the same time, he accurately identified problems in the procedures for the conduct of a terrorist investigation set out in the Crimes Act, which had been introduced in 2006.

Clarke says that one officer became too close to that case, and he says that the Director of Public Prosecutions should never have advised AFP to charge Haneef. He nevertheless goes out of his way to describe the senior AFP officers involved in the investigation as dedicated, impressive people of high capacity. I wish to say that I identify with those remarks; I precisely agree with him. Real people in situations like this one can face quite extraordinary stress and, in the Attorney-General’s words, they need procedures to administer that are precise and appropriately tailored. It is worth quoting from the Clarke report:

Unfortunately, the investigation has been presented, somewhat unfairly, as a complete bungle. That is because it took a long time and in the end Dr Haneef was wrongly charged. Should it have taken so long? I think not … In my view, the ‘extension of time’ provisions in the Crimes Act—which failed to provide a cap or limit on the detention period—removed, or diminished, the sense of urgency that should have been brought to the task of determining whether to charge or release.

That is what Clarke said. He said the investigators, who were dealing with an entirely new kind of crisis, needed clearer, more precise procedural guidance. The amendments in the present bill to part 1C of the Crimes Act have the purpose of clarifying the intent of the terrorism investigation process. They clarify the definition of the word ‘arrested’. Part 1C powers apply only if a person has been validly arrested. They set a seven-day limit as the maximum period that can be specified by a magistrate and disregarded from the investigation period. They clarify how the investigation period and the time that may be disregarded from it are calculated. They clarify procedures by which investigators may apply for a period of disregarded time and they insert a number of proper safeguards. A senior officer must oversee the preparation of an application to the magistrate in this circumstance. The arrested person or their legal representative is entitled to make representations to the magistrate. That is to say, the overall purpose of this amendment, a quite critical one, is to clarify the policy extent of the terrorism powers and to improve their practical application.

I turn now to the law of sedition. It has archaic roots in the Star Chamber of the early 17th century. It was used against Gandhi. It was used against the shearers in the great strike of 1891. It was last used in the infamous case against the communist leader Sharkey in 1949. It is by definition imprecise, subject to arbitrary application. It may be used to punish a defendant severely not for what they have done but for what they have said. The sedition law had fallen into disuse at both federal and state levels; however, sedition offences in the Commonwealth Criminal Code, lying there dormant, were resurrected and included, admittedly in somewhat modified form, in the 2005 terrorism legislation.

There were not a few people on both sides of this House who were deeply troubled by that development. In the atmosphere of the time, the revival of the sedition provisions was a clear and present threat to Australian freedom of speech—not only a direct threat but an indirect threat insofar as provisions of that nature frighten people into restraining their words for fear of possible prosecution. The compromise offered by the Howard government in 2005 was a review by the Australian Law Reform Commission. I am profoundly relieved that in the bill before the House the government is essentially accepting the recommendations of the ALRC.

The sedition and treason offences in the Criminal Code will be clarified and the odious words themselves abandoned. The name of the sedition offence will be changed to the precise and accurate term ‘urging violence’. An offence to intentionally urge violence against a group on the basis of race, religion, nationality or political opinion already exists, at least where that action would threaten the peace and good government of the Commonwealth. This bill will expand the offence to include urging violence on the basis of ethnic or national origin. Also, it will expand the offence to include urging violence against an individual and it will cover the use of violence even when the peace and good government of the Commonwealth is not threatened. That will be a lesser offence.

This is a tough law but it is not any longer a law that threatens free speech. In the same spirit the treason offence—properly called ‘providing assistance to the enemy’—will be amended to make it clear that the offence must involve assistance to the enemy that is real or concrete.

Finally I should mention that the measures in this bill were developed in close consultation with the community. The Attorney-General released a discussion paper in 2009 and there was a good level of public participation and submissions received in response to the discussion paper. Indeed, the process exemplifies the level of consistent well-focused community consultation and responsive participation that will ensure that our counterterrorism legislation is properly understood, is appropriately targeted and does meet community needs and community expectations. Some of the measures that were included in the discussion paper, I should mention, are not in this bill. Those are measures that will require the states to amend their legislation which refer power to the Commonwealth. I understand that the government will continue to work closely with the states to progress those measures. I commend the bill to the Main Committee.