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Tuesday, 25 May 2010
Page: 4070


Mr OAKESHOTT (6:29 PM) —I rise this evening certainly not to oppose the National Security Legislation Amendment Bill 2010, the cognate bill and the formation of the joint committee but to once again put on the record a defence of liberty through the rule of law. I also once again wish to make some points about our role in the process of developing precise and appropriate laws for various operational and strategic agencies to implement. Where it is necessary to put in place special circumstances for exemptions to those processes, we need to do it in a precise and clearly defined manner. Whilst this legislation is, in a broad sense, a step forward on that front, there is more work to be done. I hope that attorneys-general and both federal and state executives continue to be vigilant in appreciating and enhancing the rule of law through the development of transparency and accountability in our law, because we are stronger if those broad principles are put in place.

I concur with the member for Werriwa about the role that both the member for Macquarie and the member for Denison have played over a long period of time as fellow travellers on both liberty and rule of law in what has been a swing of the pendulum over the last decade towards the wants and needs of the state—at times at the expense of citizens’ liberties, both individual and community. I wish them both well—if this is indeed the last sitting! Whether it is being active in the form of writing letters to the editor or whether it is taking higher office all the way through to secretaries-general of the United Nations, I wish you well in your travels and look forward to staying in touch.


Mr Debus —I believe the member for Denison is going to become a chief justice!


Mr OAKESHOTT —Then I am glad that I said what I said! As this is wide-ranging legislation, I will also be a little bit wide-ranging. I will start with some broad principles and then try to come back, in the time I have, to the individual. The broad principles that I have just been talking about are my first point. Democracy is at its strongest if the rule of law is our safe port. Both in the context of shield and sword, when we need to attack and when we need to defend, it is critical for public policymakers in the citizens house to understand that when it gets tough, when questions of community safety are put upon us, the consistent safe port is in the processes, established over hundreds of years, attached to natural justice and rule of law principles.

I have a weird habit of reading more than one book at a time, and the two books I am reading at the moment are My Life with the Taliban and a book about the role that John Hatton played, called The Stench in this Parliament. I did not think the books were connected until I started to think about this speech, but in that role of sword and shield, attacking and defending with respect to upholding the rule of law, the Hatton story is very good with regard to whether we are comfortable as community and citizenry in handing over complete power to our own agencies. Hatton’s great crusade was royal commissions into police in New South Wales. Therein lies an example and a cautionary tale for all of us when we are thinking about those crazy, brave moments when the easiest policy decision is just to hand over the issue to the police, or hand it over to the military and say, ‘Go your hardest, clean it up and sort it out,’ and walk away as upholders of the process of the rule of law. That is in a defensive and a shield sense with regard to the rule of law. My Life with the Taliban is a story that I would recommend to everyone to read in relation to what we, over the last decade, have clearly defined as ‘terrorists’—which we have used everything in our power to hunt down, lock up and try to stamp out in what is proving over time to be a somewhat futile exercise as we find ourselves still deeply entrenched in conflict.

Whilst the member for Macquarie was probably a lot wiser than me in quoting former Prime Minister Menzies with regard to wanting to protect liberties at all times but not doing it at the expense of one’s own liberties, I would like to make the same point but by quoting someone who was held at Guantanamo Bay for seven years and released without any charges—an Afghani local who just ended up in the wrong place at the wrong time. He made a similar point in a poem he wrote whilst being held. He wrote:

This ‘freedom’ put a proud people in chains

And turned free men into slaves

…            …            …

This is “democracy” by the whip

And the fear of chains

With a whirlwind at its core

Whilst it is exactly the same point that the member for Macquarie was making when quoting a former Prime Minister, we see that point being made by a prisoner at Guantanamo Bay in the form of a poem. He was released without charge after seven years in a process that I would hope over time is reflected on as one that was questionable in its delivery of the rule of law and questionable in its ability to achieve the outcomes that it intended to achieve when first established.

I am a strong defender—in case you had not noticed—of the principles behind natural justice and the rule of law. The very foundations of being a member of parliament and a believer in parliamentary processes should be an example of that for all of us. Therefore, the brave, the strong and the macho position, in my view, is to be vigilant in the defence of those rule of law principles. That is why I am pleased to see some greater precision around some of the issues in this package, including the change to sedition laws and the change to language defined as ‘urging violence’, including the urging of violence against an individual and the urging of violence which does not involve the state or Commonwealth. I think they are sensible steps forward for the law in this country. The fact that we are seeing better definitions attached is good and sensible.

Likewise, the formation of the joint committee for law enforcement—and including the AFP in that—and oversight as part of the process certainly sit comfortably with the principles that I have just talked about. I think it is as much in the Australian Federal Police and the Australian Crime Commission’s best interests to have that oversight as it is in the community’s best interests to have that oversight and for there to be a meeting place in this building of a joint committee that allows for, in a sense, a clearing house of any of the issues in and around the processes of the rule of law. So it is certainly a welcome move.

I do, however, continue to raise concerns around some of these broader questions. The word ‘enemy’ has appeared in the language in some of this legislation. If we are being precise and are keen to define what we are talking about—and without me being cute in raising a concern—we should ask: what is our enemy and who is our enemy? That would be a worthy exercise in trying to be precise and trying to define. Likewise, there is an issue with the language around terrorism itself. What is a terrorist? Who are the terrorists?

Following on from the Clarke inquiry, if we are going to use this sort of language, and use it as if everyone knows what it actually means, it would be nice to have some clear definitions and some precise boundaries around exactly what is a terrorist today when compared to a common criminal, compared to a freedom fighter and compared to the many other types of definitions we could potentially throw under that same banner of ‘terrorist’ if we wanted to. Likewise, there are the definitions around an emergency situation. That language has crept into this legislation. Whilst it is hard to predict the future and where such a situation would arise, if we are being true to our intent—and I give government credit for trying to be precise—it would be good to be very clear in the language around what is an emergency situation and when and how such powers would and could be used into the future.

They are my broad points. Basically I have no opposition. Essentially it is a step forward. But I certainly do not see it as the end of the road. Hopefully, we will see further action in the quest for precision. I hope the Attorney-General is a flag-bearer in upholding these principles around the rule of law so we can get the best form of freedom and the best form of democracy that we can. Taking the broad and turning it into the defined in all of this, to achieve the best form of freedom and the best form of democracy there must be an obligation on every single citizen to know the law, to understand the law and to understand rights and responsibilities. To use some of the former Prime Minister’s language about personal education, it is about being alert, aware and also safe. If individuals take on that responsibility as part of a broader citizenry and a broader community then we will build the strongest society and the strongest democracy that we can.

Whilst the Attorney-General is in the chamber, I want to put an issue to him that we have had several discussions about. He very kindly visited the mid-North Coast to meet with many of the community service providers on the issue of community legal centres. We have a gaping hole on the mid-North Coast when it comes to the delivery of community legal services. People on the mid-North Coast are expected to get in contact with services that are four to five hours drive away. After 15 years of public service, I know that community legal services on the mid-North Coast are simply nonexistent; access is just not happening. I know we have had lots of discussions about it. There is great anticipation about any potential announcements. I once again look to the Attorney-General to provide us with some wonderful news! I certainly hope he can do that, and we will support his claim for Chief Justice if he delivers! This is a good package. It is a step forward. I hope every individual in their daily life considers the role they have in knowing and understanding the law. I think there are things that attorneys-general and I can do in helping in that regard—that is, in the context of community legal centres.

Once again, I urge everyone in this place not just to pass the ball to the operational or strategic agencies on some of those broad principles but to be macho in holding on to them, defending them and working hard to make sure the agencies do what we as representatives want them to do in both defending and attacking when it comes to issues around the rule of law.