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Thursday, 17 October 2002
Page: 5377


Senator BRANDIS (11:28 AM) —As I listened to Senator Kirk's speech earlier on this morning, I was struck by what implausible advocates for civil liberties are those who come into this parliament representing parties of the Left. It is never to be forgotten that those who represent the parties of the Left in Australian parliaments have been the apologists for most of—not all of, but most of—the most brutal and oppressive governments of the 20th century. I do not remember reading of Dr Evatt being too fussed with the civil liberties of people in the Soviet Union or eastern Europe. I do not remember Mr Whitlam being too concerned with the civil liberties of people in the Baltic states or in China. I do not remember Dr Jim Cairns being too concerned about the civil liberties of people in Vietnam. I do not remember some of the household gods of the left-wing intelligentsia, like the late Professor Manning Clark, who published that disgraceful book, Meeting Soviet Man, many years ago, being too concerned about the civil liberties of people who suffered under communist regimes. I do not remember any of that.

What I do remember though is that, when one reads the tracts and the doctrines upon which socialism is based, what one reads is an incessant attack on civil liberties as bourgeois false consciousness. That is what socialists say about civil liberties: that civil liberties are bourgeois false consciousness. It is those who represent the parties of the right, those who sit on this side of the chamber, who are concerned about the rights of the individual and who are concerned to limit the power of the state. It is those who sit on the left of the chair, those who come into this parliament to represent parties of the left, who are concerned to glorify the power of the state and to diminish the rights of the individual. So, as I say—and I do not include you in this, Senator Greig; I want to focus myself quite specifically on the Australian Labor Party—whenever one hears Labor Party politicians putting on the mantle of civil liberties one ought to be sceptical, and one ought to consider what they did and what they said in defence of regimes which in the 20th century were among the greatest violators of the rights of their peoples the world has known.


Senator Cook —Mr Acting Deputy President, I rise on a point of order. Senator Brandis has cast a slur of the worst sort upon honourable senators on this side who are members of the Australian Labor Party. He has done so using terms which can only be fairly described as inflammatory and disgraceful to describe our conduct and our attitude. They are terms which—although I concede that that is a matter for debate—are fundamentally untrue. He has referred to the Australian Labor Party. I am an Australian Labor Party senator, and many of those on this side are. The reflections he makes upon us as a collective group are reflections upon us as individual senators too. They are rejected and they should be withdrawn.


The ACTING DEPUTY PRESIDENT (Senator Watson)—I do not think Senator Brandis was reflecting on individual senators. I warn Senator Brandis to make sure that he does not reflect on individual senators, but if he is talking generally that is acceptable.


Senator Cook —Mr Acting Deputy President, I rise on a point of order—


The ACTING DEPUTY PRESI-DENT —Is it a further point of order? Because I have responded to that point of order.


Senator Cook —Yes, it is a further point of order given the ruling that you have made. My point of order is that you accept that a reflection upon us as individuals would be unparliamentary and should be withdrawn. I understand that is what you have said?


The ACTING DEPUTY PRESI-DENT —That is right.


Senator Cook —As I say, I am a member, and a proud one, of the Australian Labor Party. He has reflected upon my party in the harshest and most unreasonable terms. That can only be regarded by me, and by anyone listening to this debate, as a reflection upon me as well. I take that to be personal and I reject it in the most trenchant manner. Because it is personal, I think you should consider your ruling and rule that those remarks be removed.


Senator Kemp —Mr Acting Deputy President, I rise on a point of order. This will be a vigorous debate. I have sat long hours on this side of the chamber and listened to the likes of Senator Cook and his colleagues and the relentless and savage attacks that they make on distinguished Australians such as John Howard and on the Liberal Party. I point out that Senator Cook is notorious for having a glass jaw.


The ACTING DEPUTY PRESI-DENT —What is your point of order, Senator Kemp?


Senator Kemp —The point of order is that no point of order has been raised by Senator Cook. This is a matter of debate, and the debate should be allowed to continue. I make the point that, if Senator Cook continues to jump to his feet, we will be jumping to our feet during his remarks.


Senator Cook —On a point of order, Mr Acting Deputy President—


The ACTING DEPUTY PRESI-DENT —Just a moment, Senator Cook; I will just give a ruling. He cannot reflect on senators individually or collectively, and I do not believe he has done it to date, but I will listen very carefully.


Senator Cook —Thank you, Mr Acting Deputy President. I now rise on a further point of order. It relates to the remarks made just now by Senator Kemp. As I recall those remarks—and Hansard will be a true and accurate copy of them, so it is a matter of a clear record—


The ACTING DEPUTY PRESI-DENT —Please come to the point of order, Senator Cook.


Senator Cook —The point of order is that he said that, should I continue to raise points of order—which I raise conscientiously for the good conduct of this chamber—he will ensure that he raises consistent points of order on me during my remarks, which will follow lately. I take that as a threat that, if I conduct myself in a principled way to defend the standing orders of this chamber, I will be dealt with by a use of the standing orders against me by Senator Kemp. That is a reflection upon me, and you should rule that he withdraw.


The ACTING DEPUTY PRESI-DENT —I do not regard that as a reflection; I think it is just part of the robust debate that we are likely to continue to have during this particular debate.


Senator Cook —If that is the ruling then that is the ruling.


The ACTING DEPUTY PRESI-DENT —Thank you, Senator Cook. Please continue, Senator Brandis.


Senator BRANDIS —Mr Acting Deputy President, may I say that I do not make any personal reflection against Senator Cook. My reflections are about the side of politics and the political point of view which the Labor Party represents and which Labor senators represent. I asked the question rhetorically, merely to point out the hypocrisy of Labor politicians representing themselves as champions of civil liberties.


Senator Cook —Mr Acting Deputy President, I rise on a point of order. I am a Labor politician and I represent myself as a champion of civil liberties. I object to the use of the word `hypocrisy' and I ask him to withdraw it as unparliamentary.


The ACTING DEPUTY PRESI-DENT —Senator Brandis, I did not take it that you were referring to a particular senator.


Senator BRANDIS —I do not say these remarks about any nominated or individual senator, no.


Senator Cook —Or senators collectively.


The ACTING DEPUTY PRESI-DENT —Or senators collectively?


Senator BRANDIS —Or senators collectively. I am talking about the Australian Labor Party. I do ask rhetorically: if the Australian Labor Party are so concerned about civil liberties, where were the Australian Labor Party when the peoples of eastern Europe and the Baltic States were yearning and striving for their freedom? Where were the Australian Labor Party during the Gulag? Where were the Australian Labor Party during the Great Leap Forward? Where are the Australian Labor Party today when it comes to concern for the rights of people under the diminishing number of communist governments in the world? They were nowhere. They were deafening by their silence. They are condemned by their own neglect of the greatest civil liberties issue in any of our lifetimes. That is why I have scorn and contempt when I hear members of the Australian Labor Party representing themselves as champions of civil liberties—people who come into this place to enlarge the power of the state and diminish the rights of the individual. It is the Liberal Party that is the party of civil liberties, and let that never be forgotten.

I want to deal specifically with some of the aspects of this legislation and, as we know, as always, legislation of this kind involves a balancing exercise. Liberty is a key value of any liberal democracy. Nobody disputes that; that is not an issue.


Senator Lundy —Trade it off.


Senator BRANDIS —That is right! There are balances to be struck, Senator Lundy— you are right. One of the other core values of any liberal democracy and one of the core responsibilities of government is the protection of its citizens from harm. Does anybody dispute that one of the fundamental obligations of a government is to protect its citizens from harm? I dispute the proposition that this legislation, in the form which it now takes, having been amended to incorporate most of the recommendations for safeguards that came from the Senate Legal and Constitutional Affairs Committee, goes too far or is a knee-jerk reaction. The particular evil with which we are concerned—that is terrorism—is an evil which we will be successful in meeting only if we anticipate it before it happens. That is why the entire approach that I heard from Senator Kirk and Senator Greig is quite wrong. This legislation is not dealing with the investigation of criminal conduct after the crime has been committed. That is not the point. If the crime has already been committed, it is too late. If the terrorist act has been committed, it is too late. It will have been a failure. The whole point of this legislation is to enable terrorism to be anticipated so that it does not occur. I cannot for the life of me see that there is anything inherently illiberal about that. It seems to me that it is at the very core of a government's responsibility to protect its people from harm.

Mr Crean last Monday gave a press conference and he said, and he was right in saying so, that one of the lessons of the terrible event last weekend in Bali was that the most effective form of prevention is `having good intelligence about terrorists and their operations'. Those were Mr Crean's words and I am sure nobody in this chamber would disagree with them. The point of this legislation is to enable such intelligence to be derived, to be gathered. I do not agree, with respect, with the view propounded by Senator Greig that there is necessarily something intrinsically wrongful about enabling coercive powers, subject to strict safeguards, to be employed against people who have not and are not suspected of committing a crime if it be the case—



Senator BRANDIS —Just wait to hear what I have to say, Senator Lundy—if it be the case, and this is the case with which this legislation is concerned, (a) that there are reasonable grounds to believe that the person against whom those coercive powers are to be employed has knowledge of an imminent terrorist event and (b) the exercise of those powers is regulated by strict safeguards. If a person in Australia not presently under suspicion of a criminal offence but nevertheless believed on reasonable grounds to be in possession of information which might lead to the apprehension of a terrorist event so that it is anticipated and prevented before it can happen, do you seriously say that there ought to be no capacity to use coercive powers to elicit that information from that person?



Senator BRANDIS —Apparently Senator Lundy does. I do not. If a person is in possession of knowledge which, if communicated to the authorities, might assist in the anticipation and prevention of a terrorist crime, I do not regard it as an unacceptable abridgment or abrogation of civil liberties to enable the coercive power of the state to be used to elicit that information from them so long as the circumstances in which that can be done are protected by appropriate safeguards.


Senator Lundy —You are constructing a scenario to suit your purpose. There is no basis in Australian law.


Senator BRANDIS —Senator Lundy, don't you throw civil liberties at the Liberal Party. We are the party of civil liberties and you are the party of apologists for those who have violated civil liberties in the most gross and egregious manner the 20th century has ever seen.

I want to turn to another point that Senator Greig made. Senator Greig made the observation, and he is right, that there is a risk of abuse of power. May I respond by saying two things. First of all, whenever any government authority, particularly an investigative or a policing agency, is vested with power, there is a risk that that power will be abused. That is in the nature of things. It does not follow from that proposition that no power or extended powers should ever be given to investigative agencies. Senator Greig, if you are going to run that argument, you could run it as a critique of every single piece of legislation that this parliament passes—sometimes with the agreement of your party—whereby investigative agencies are given a new power. It is not an argument to say that the power should not exist because it might be abused. Of course it might be; that is in the nature of things. The answer is to ensure that the exercise of the power is hedged and guarded by sufficient protections and safeguards to ensure that that does not happen, and to define the power in the most narrowly focused way to ensure that there is not an extravagant opportunity for abuse. But it is not an argument to say: this is a power; therefore it can be abused and therefore it should not exist. That is a poor argument.


Senator Lundy —No-one is saying that.


Senator BRANDIS —That was Senator Greig's argument; and it is wrong. In the time available to me I am going to respond to Senator Kirk's question when she asked rhetorically: how will the bill assist to protect the Australian people from the threat of terrorism? That is what the bill is about. Let me tell you, Mr Acting Deputy President, how it will in a realistic, measured and material way, assist in protecting the people from terrorism. First of all, as I said a moment ago, the bill is about the eliciting of information—the gathering of intelligence. Intelligence is the key tool for the prevention of terrorism. It is not about punishing terrorists; it is about preventing terrorism. The bill provides a warrant procedure whereby information may be elicited in circumstances where presently ASIO is not empowered to elicit that information. To obtain a warrant that can, in exceptional circumstances, authorise ASIO officers to investigate a person believed on reasonable grounds to have knowledge of an imminent terrorist act, an elaborate procedure needs to be engaged in. In the first place, the Director-General of ASIO has to seek the consent of the Attorney-General to apply for the warrant. If that consent is withheld, the process ceases. Secondly, the application must be made to an issuing authority. The issuing authority must be a member of the federal judiciary or another qualified person.

Before he gives his consent, the Attorney-General is under a statutory obligation to be satisfied on reasonable grounds that the warrant `will substantially assist the collection of intelligence that is important in relation to a terrorism offence' and `that relying on other methods of collecting that intelligence would be ineffective'. Further, if the warrant authorises someone to be taken into custody, the Attorney-General must also be satisfied that the person who it is sought to take into custody:

(i) may alert a person involved in a terrorism offence that the offence is being investigated; or

(ii) may not appear before the prescribed authority; or

(iii) may destroy, damage or alter a record or thing the person may be requested in accordance with the warrant to produce ...

If the warrant concerns a person between the ages of 14 and 18 years, the Attorney-General, in addition to all of those other things, must be satisfied that it is likely that the person will commit, is committing or has committed a terrorist offence. When, but not until, the Attorney-General's consent is given, the Director-General can then apply to an issuing authority for a warrant. At that stage the issuing authority—that is, a member of the federal judiciary—may only issue the warrant if it has been requested in a proper manner and he is `satisfied that there are reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to a terrorism offence'. So there are two high thresholds which must be satisfied before a warrant can be issued: first, a reasonable belief on the part of the Attorney-General and, secondly, a reasonable belief on the part of an issuing authority. And before any of that can happen the Director-General of ASIO must arrive at a view that this extraordinary process—because it is an extraordinary process—is necessary.

In respect of people who may be detained without access to legal representation for 48 hours, that is something that can only occur, in the language of the bill, in exceptional circumstances. Those exceptional circumstances are that the relevant issuing authority and the Attorney-General are both satisfied that the power must be exercised to protect the community from imminent terrorist danger. How absurd would it be if you had a situation in which the Australian authorities reasonably believed and persuaded both the Attorney-General and the independent judicial authority that there were reasonable grounds that a terrorist act was imminent and they could be defeated and thwarted by the person suspected of possessing the material information saying, `I am not going to speak until I see a lawyer nominated by me'? It would be the most obvious ruse to enable the very purpose of this legislation to be thwarted and avoided.

I am a lawyer. I take second place to no-one in being concerned about the rights of people to legal representation. It is a very important right. But, like any right, it can be abused. The one circumstance for which provision is made that a person may be held in custody without access to a lawyer for 48 hours is in the extremely narrow case where there is a reasonably held belief of an imminent terrorist act. I do not have any difficulty in accepting that that is a reasonable limitation on that right. Rights do not exist in isolation. They are balanced not only by responsibilities but also by the obligation of governments to protect their people from harm, which is the point at which I commenced.

There are limitations on existing rights in this legislation—in very narrow circumstances and very carefully hedged in by safeguards. The Attorney-General and the government have been most cooperative in adopting most of the recommendations of the Senate committee to augment and improve those protections. At the end of the day, the question we as senators have to ask ourselves is: is the obligation of government to protect its citizens from harm sufficiently urgent that these limitations are justified? (Time expired)