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Thursday, 12 August 2004
Page: 26459


Senator BARTLETT (Leader of the Australian Democrats) (10:38 AM) —This motion asks that these two bills—one of which, as I have said previously, has been brought up out of nowhere with no notice whatsoever—should be debated together. It is not only an attempt to hold an extraordinary and unnecessary Friday sitting of the Senate to try to sneak through one attack on our freedoms; the government want to do two for the price of one, mashing them together and trying to rush them all through. The more they can push through without people noticing, the more they think they can get away with. The motion before us is to enable both of those bills, which deal with separate matters, to be taken together. The main commonality between them, apart from being called antiterrorism bills, is that they both involve further removal of the freedoms of Australians and give extra power to the government and government agents.

There is no justification given for the need to put them together. There is no justification given even for the need to pass them today. I should remind the Senate that under our current arrangements for sitting today there is still no limit on the length of time we can sit. We are here sitting literally at the government's pleasure—not that I am particularly interested in making it a pleasurable experience for them. The motion that was previously agreed by the government was that we sit until we adjourn, and the only person who can move an adjournment is a government minister. So we do not know if this is it. They have come to us and said, `We have got the antiterrorism bill, we have got the marriage bill and we have got the electoral matters bill, and that will do us,' but we do not know. Yesterday they said not just privately but also to the whole chamber, `All we want is the free trade agreement, the marriage bill and the electoral matters bill, and that will be it.' There has been no coming back into the chamber and apologising for blatantly misleading the Senate. I had thought there was still a convention that, when government ministers blatantly mislead the Senate, they come in and correct the record. We have had none of that.

As 43 eminent Australians said at the start of this rather long week, we cannot trust what the government do. There is no honesty, integrity or democracy in politics in this country anymore, so we have no way of believing what they are saying to us now. Privately they can say it and they can say it on the record in the chamber; it does not matter. They can change their minds again five minutes later if they feel like it, with no recognition even that they should bother correcting the record. Why should they care about the fact that they have misled the Australian people? They just go from one deception to the next. At the moment we do not know how many bills the government are going to try to add to the pile of repressive measures and attacks on our freedoms that they are trying to push through on an extraordinary and unnecessary Friday sitting. Will it be Friday night, Saturday or Sunday—who knows? The first thing I would very strongly request of the government is that they outline categorically to the Senate and to the public which bills they are now going to propose the Senate deal with before we adjourn today, tomorrow or Sunday—or whenever it ends up being. They should outline the order in which they propose to put them forward and they should move an amendment to put that as a decision of the Senate so that they cannot come along later and come up with some other fairytale, the latest version of the pretend reality that they are trying to make the rest of us subscribe to.

That is the first and immediate thing I suggest to the government. Otherwise I can quite strongly indicate to them—we cannot believe what they say, but you can certainly believe what the Democrats are saying, and I say this quite clearly—we will question, every step of the way, what it is they are doing, what they are planning to do next, why they are trying to give it urgency and what their justification is. We will then expect a proper and full debate on the matters in the legislation and the consequences, not just legally but also socially for the country. That is our job; that is what we are elected here to do. We do not need to be sitting here today to do it; we can be doing it properly and in the normal process in two weeks time, but if the government and the Labor Party are going to force the Senate to sit in this unnecessary way then we will make sure the Senate does its job. That was the first thing that needed to be said.

We oppose taking these bills together. It is not necessary, particularly when one of them has advanced from being No. 16 on the Notice Paper to No. 1 with a bullet, without any justification or explanation. We oppose taking the bills together also because we were told yesterday that it was not a requirement that the other antiterrorism bill be debated today. I suspect it is part of a deliberate strategy. It is hard to know, when you get these sorts of things, whether the government has just not figured out what it is doing from one minute to the next. That leaves the Labor Party thinking, `We don't know what we're doing, because the government has not told us what we're going to agree to yet.' Then we will all come along and they will agree to it. I suspect, sadly, that we will get agreement on this as well. But perhaps it is part of a deliberate strategy. If you are going to attack people's freedoms, if you are going to deliberately reduce the right of freedom of association, if you are going to give extra powers to the government and take them away from the people, you want to do everything you can, when you are attacking things, to try to get through the defences.

I remember Jeff Thomson, a feared Australian fast bowler with a very strong ability as an attacking bowler, saying his great secret was that he never knew where he was going to bowl the ball, so there was no way the batsman was going to know. I think the government are doing the same thing: they do not know what they are going to do next, so there is no way the Australian people and the Senate are going to twig as to how best to defend against their latest attack on our freedoms. In every speech we have another line of attack, another justification, another manufactured argument, another piece of deceit. The only option with that sort of thing is to respond like Geoffrey Boycott: play a straight bat to everything and look at everything as closely as possible. We have to make sure that every aspect of what is being put forward gets the scrutiny of the Senate.

Part of the strategy is that the longer we sit, particularly once we get into night hours, the ability of others, particularly the media, to scrutinise is reduced and it is much easier to make those attacks on freedoms without the public becoming aware that that is what is happening. This would be serious enough in normal times but I remind the Senate, as the Democrats have done a few times this week, that these are less than normal times in terms of the security of the freedoms of the Australian people. Last week we had a High Court decision. The High Court is charged with interpreting the law and the Constitution as it sees fit and that is what it has done. But the law in this country now is that we have such a scope for government power, under the Migration Act, that the government can lock people up without charge and trial and without any recourse to the courts to do anything about it.

The Democrats have said repeatedly that that decision is not just bad news for people in migration detention. Many of us assumed, and I am sure most of the Australian public assume, that there is some legal or constitutional underpinning against the government's having absolute power to decide to remove people's freedom without any protection of the courts. But the decision of the High Court is that there is no protection in our Constitution for something as fundamental as locking people up indefinitely without charge or trial. Under one act, that has been found to be constitutional.

There is no doubt that the government has the constitutional head of power to pass these laws on terrorism. Quite clearly the government can take away those freedoms of the Australian people, as these bills attempt to do. These bills give massive discretionary power to the government not just to restrict people's freedom of association but to penalise people. The bills attack freedom of association and freedom of speech. They give massive power to a government minister to remove people's freedoms with no oversight by the courts. That is what these bills do: they give huge extra discretionary power to ministers without scope for the courts to examine it.

Normally you would think, `Well, there must be some protection there. There must be some scope to stop them using that power in extreme or totally unfair ways.' The High Court clearly said last week that, in the migration area, as the act now stands there is no protection. The only question is whether or not the government have the head of power under the Constitution to pass a law dealing with that area, as they clearly do with migration. They clearly do in this area as well—there is that head of power—so there is no protection.

We have a much greater responsibility this week than we did last week, because the interpretation, the effect and the reality of the law have changed since last week and since these matters came before the Senate committee. The ramifications of the High Court decision last week, in terms of the total lack of protections for the freedoms of the Australian people, are so potentially far reaching that any piece of legislation that is currently before the Senate that involves giving extra power to a government minister or delegated official and taking it away from the Australian community or individuals should be re-examined. It should be re-examined to see whether the massive expansion of government power that has now been ruled valid by the High Court actually means there are even fewer protections against extreme and unfair actions by the government than we had previously thought.

These bills were already unacceptable. The High Court's decision shows that, when governments have been given power to remove and restrict people's freedoms, those powers are unfettered. It just makes a far stronger argument for us not to allow these sorts of bills to pass. We certainly should not allow two separate bills that deal with two separate matters to be marshmallowed together, squished in and pushed through in an attempt to minimise scrutiny of them. The case for urgency has not been made—and that should be made first, frankly—for us to debate them today. But, if we are going to debate them, the case of them being two separate bills dealing with two separate matters—sure, there is commonality in that both of them give extra power to the government and take away freedoms of the community—should be addressed.

I do not need to remind the opposition of some of the heartfelt, heart-on-sleeve, impassioned speeches we heard a couple of months ago about the necessity of protecting our civil liberties and freedom of association when we were talking about protecting building unions. But when it comes to bills that restrict the freedoms not just of building unions and workers but of everybody in Australia the Labor Party are happy to roll over and let them through. They say, `We'll deal with whatever the government says we're going to deal with.' Some consistency would be desirable. I do not suggest that the concerns people expressed in June were not genuine. They certainly were and I understand the concerns people had. That is why we were keen to get as many protections as possible. These bills do not have any protections at all and they are far wider in their scope because they affect every Australian.

There is no guarantee, as things currently stand with the decision that the Senate has made, that we will not have next before us some of the other bills that are still on the Notice Paper, like ticking time bombs, to legalise interception of SMSs, email and voicemail without even a warrant. Those are the surveillance bills. We expressed concerns a couple of months ago about industrial relations legislation that might mean extra power for government officials to conduct surveillance of workers. That is a legitimate concern to express. Surveillance that was overseen by parliamentary committees and was able to be challenged in a court if it was not done in appropriate ways and in accordance with the law was a protection that was put in on those occasions to ensure that there was still judicial oversight that could be challenged in the courts. In these bills we have before us there is not even parliamentary oversight, let alone judicial oversight of surveillance in the workplace or anywhere else about anything anybody is up to.

I would certainly not put it past this government—in fact, I suspect some of them have already used this language—to call workers, whether construction workers or anyone else, `industrial terrorists'. I am sure I have heard the phrase `industrial terrorism' a number of times. Who knows? We had people in our Great Hall last week calling gay couples `moral terrorists', and they were quite seriously using that phrase. The powers that are contained in these bills—and some of the other bills that are on the Notice Paper that the government are still able to bring on today, as things stand—give absolutely untrammelled power to government officers to conduct surveillance, intercept messages and charge people for so-called inappropriate association with others. These are massive attacks on our freedoms, and they are trying to get them passed by legislation by exhaustion.

It is simply not acceptable, which is why we will not just oppose this motion but continue to oppose this travesty of process throughout the day and throughout tomorrow—at a minimum, I would suspect. These bills themselves certainly need appropriate scrutiny. If we are going to be dealing with both of them together, we will certainly make sure they are appropriately scrutinised in the committee stage, as well as the other ones that have been flagged. Again I would remind the Senate, and particularly the Labor Party, that this could easily be resolved. All they have to do is vote against this motion and vote to adjourn. Then we could get back to an appropriate democratic parliamentary process, we could prevent these attacks on our freedoms being put forward without proper scrutiny and we could have the parliament consider legislation in a proper manner, as I think the public are entitled to expect us to do.

As 43 eminent Australians said when they stuck their necks out at the start of the week, the standards of democracy in our country have sunk to alarming levels. This is just another indication of it. They got pilloried and vilified for their troubles, for expressing their concern for their country and for their country's democracy. That is what you get these days: if you express concern for your country, all you get is a torrent of abuse. Plenty more than 43 people, eminent and otherwise, have those same concerns. All of them tie back to what we are debating at the moment, which is to enable two separate pieces of antiterrorism legislation, which in the Democrats' view unnecessarily and excessively attack our freedoms, to be rushed through alongside each other rather than rushed through separately. If the government is going to try and rush these through without justification, push them through and hope nobody notices, we believe it should at least be required to do it one piece of legislation at a time. We urge the Labor Party to take the same view.