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Thursday, 12 December 2002
Page: 7929


Senator HARRIS (4:14 PM) —I would like to commence my contribution to this third reading debate by clearly indicating that One Nation will not be supporting the legislation, even in its amended form. I clearly indicate to the chamber and to the people of Australia that, had it not been for a combination of the opposition and the cross-benchers, this bill would be considerably worse in its impact on the rights of innocent Australians. In contributing to this debate, I would like to quote from a letter from the Law Institute of Victoria. In a letter to me on 1 August, they wrote:

The Law Institute of Victoria urges you to vote against this bill in its present form. It is the institute's opinion that the government has not demonstrated that existing powers held by the Australian Security Intelligence Organisation—

that is, ASIO—

are inadequate to meet any potential security threat. This stance is put forward in particular by the Institute's Young Lawyers Section Law Reform Committee. In the alternative, we urge you to insist on the implementation of the recommendations of the Joint Standing Committee on ASIO, ASIS and DSD report and of the Senate's Legal and Constitutional Committee report tabled on the fifth of June.

If we then go further to the submission by the Law Council of Australia, again to the Senate Legal and Constitutional Legislation Committee, we move to the concerns relating to the unconstitutionality of the bill:

The Law Council of Australia respectfully adopts the following warning given by Justice Kirby on 11 October 2001 against potential excess in the adoption of an anti-terrorism law—

and it is referring to the rejection by the Australian people of a proposal, by way of referendum on 22 September 1951, to add a new section—that is, section 51A—to the Constitution to legislate with respect to communists and communism. It goes on to quote:

Given the chance to vote on the proposal to change the Constitution, the people of Australia, fifty years ago refused. When the issues were explained, they rejected the enlargement of federal power. History accepts the wisdom of our response in Australia and the error of the over-reaction of the United States. Keeping proportion. Adhering to the ways of democracies. Upholding constitutionalism and the rule of law. Defending, even under assault, the legal rights of the suspects. These are the way to maintain the love and confidence of the people over the long haul. We should never forget these lessons ... Every erosion of liberty must be thoroughly justified. Sometimes it is wise to pause. Always it is wise to keep our sense of proportion and to remember our civic traditions as the High Court Justices did in the Communist Party Case of 1951.

If we look at the report of the Senate Legal and Constitutional Legislation Committee entitled Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 and related matters, we see that twoissues of constitutionality were raised, and I will speak briefly about the first one, the constitutionality of the executive authorising `the detention of a person who is not a suspect'. The committee says:

1.14 In their correspondence to the Committee, Professor Williams and Dr Carne contended that the High Court's comments in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 raised doubts about the administrative power to detain Australian citizens not involved in or suspected of a criminal offence, save in a relatively limited set of identified and exceptional circumstances.

So we have these eminent professors raising the probability of constitutional challenges where the government implements the ability to take into detention a person who is not suspected of an offence. If we look at the progression of the bill, we see that, when the bill entered this chamber, it would have—for the first time I believe—eroded the civil and constitutional rights of the Australian people in a way that no other legislation that I have seen has. The opposition moved a sunset clause to the legislation, which was passed, so at least we have at this point in time the confidence to know that this legislation will cease to have effect at the time of its sunset.

There are definition changes to the act of terrorism. The government itself brought in an amendment to ensure that a search of a person, whether a strip search or frisk, would be carried out by a person of the same sex. The government's amendments relating to former judges were defeated and the alternative opposition proposal was put forward. We have seen quite a considerable number of amendments moved to the legislation but the legislation itself, even in its amended form, carries great concern for the innocent Australian citizen.

I have no reservations, and neither does One Nation, about the powers in this bill being used against a person who intends to carry out or who has carried out a terrorist activity against Australia and its citizens— whether that be here in Australia or anywhere in the world. This debate is not about stopping the government using its powers to protect Australians. The debate is about protecting the rights of the innocent Australian. It is no reflection on this government. The concern that One Nation has is not for our present political system or the form of political process that we have in Australia today.

Had it not been for the sunset clause, this legislation would have stood until repealed and that would have presented Australians with the greatest danger. Had this sunset clause not been in place, this legislation could have been used in subsequent years by a person or persons not having the greatest intent for the benefit for the Australian people. It could have been used politically against political opponents within Australia. I clarify those words by saying that there is no inference whatsoever that any present political party in Australia would want to do that. In passing legislation in this chamber, if that legislation does not have a sunset clause we have to take that into consideration. As I have previously quoted from one of our eminent High Court judges, there are times when we need to pause and think through the ultimate process that this legislation could be used for.

At all times in this chamber we are, I believe, so involved with the legislation that we are working on at the time that there is insufficient ability to go back and look at the impacts of the legislation that we have passed. We could use the example of the deregulation of the dairy industry. Has this chamber reassessed the impact on the dairy industry— whether it has been positive or negative? No, it has not; it has not had time to do that.

In conclusion, One Nation places on the record that it is not our intent in any way in opposing this legislation to assist any person that has any intention now, had in the past, or will have in the future to carry out an action that is detrimental to the Commonwealth of Australia or the Australian people. Our concern in opposing the legislation is based on the impacts on Australia's innocent citizens.