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Thursday, 12 December 2002
Page: 7865


Senator GREIG (12:29 PM) —I move:

At the end of the motion, add:

“but the Senate:

(a) notes the recent anti-terrorist laws passed by the New South Wales Parliament which, among other things, seek to provide that certain police behaviour “may not be challenged, reviewed, quashed or called into question on any grounds whatsoever before any court, tribunal, body or person in any legal proceedings, or restrained, removed or otherwise affected by proceedings in the nature of prohibition or mandamus”;

(b) notes the increasing incidence at both State and Federal level of laws being proposed and enacted that put various Government officials beyond the reach of legal proceedings in certain circumstances; and

(c) refers the following to the Senate Legal and Constitutional Affairs References Committee for inquiry and report by 16th May, 2003:

(i) whether State laws seeking to exempt certain officers or people from legal action are constitutional, with particular reference to sections 75(v) and 106 of the Commonwealth Constitution, and the separation of powers;

(ii) whether the various laws and proposals in regard to security and anti-terrorism measures at both State and Federal level are consistent and whether or not they strike an acceptable balance between public security and the legal rights of all Australians;

(iii) the extent of privative or ouster clauses that now exist in State, Territory and Commonwealth law to exempt certain people from judicial oversight of particular actions”.

There has been much rhetoric about the need for a coordinated response to terrorism, although I think this rhetoric is often used to justify the undermining of fundamental rights and freedoms. We Democrats agree with the basic principle that a coordinated response is required. We believe that the responsibility for ensuring a coordinated response lies with the Commonwealth and it must provide leadership in addressing the threat of terrorism. In this context we Democrats now raise our concerns with various antiterrorism measures proposed or enacted at both the state and federal levels.

In this instance we are particularly concerned by the Terrorism (Police Powers) Act recently passed by the New South Wales parliament. This legislation contains a number of deeply concerning aspects. It gives police special powers with respect to people who are suspected on reasonable grounds of being the target of an authorisation. Those powers require disclosure of identity and enable police to stop and search a person, vehicle or premises without a warrant. The Law Society of New South Wales expressed its concern that these powers will be available to be exercised whether or not the officer has been provided with or notified of the terms of the authorisation. It is difficult to comprehend how a police officer could act under an authorisation or form a suspicion based on reasonable grounds if he or she does not know the terms of the authorisation.

The Australian Democrats are particularly disturbed by section 13 of the New South Wales act, which provides:

An authorisation (and any decision of the Police Minister under this Part with respect to the authorisation) may not be challenged, reviewed, quashed or called into question on any grounds whatsoever before any court, tribunal, body or person in any legal proceedings, or restrained, removed or otherwise affected by proceedings in the nature of prohibition or mandamus.

This limitation is exacerbated by clause 29, which provides that, if any proceedings are brought against any police officer for acts done in pursuance of an authorisation, the police officer is not to be convicted or held liable merely because the person who gave the authorisation lacked the jurisdiction to do so. In other words, if the authorisation was given by someone who had no power to do so, an officer acting on it cannot be held liable. These provisions represent just one of the increasing incidences at both state and federal levels of laws that put various government officials beyond the reach of legal proceedings and in certain circumstances. We Democrats are deeply concerned by this trend. We believe this level of immunity for public officials is not only bad policy but also unjustified by the threat of terrorism and possibly unconstitutional.

We are also convinced that there is an urgent need for an inquiry into the consistency of antiterrorism measures at both the state and federal levels and whether these measures strike an acceptable balance between public security and the legal rights of all Australians. Clearly it is undesirable and possibly unconstitutional for Australians in some states to face a more dramatic undermining of their fundamental human rights than those in other states. The Democrats believe that the determination of these issues is well and truly within the responsibility of the Commonwealth and that an inquiry by the Senate Legal and Constitutional Affairs References Committee as set out in the proposed amendment provides an appropriate starting point to do that. I commend the amendment to the Senate.