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Thursday, 12 August 2004
Page: 26477


Senator BARTLETT (Leader of the Australian Democrats) (11:53 AM) —It is important to emphasise what the Senate is debating here to make sure that the Anti-terrorism Bill (No. 2) 2004 and the Anti-terrorism Bill (No. 3) 2004 are not just waved through and that people listening to this debate do not think, `It's just another bill at the end of a long sitting fortnight. Why don't they all shut up and go home?' We are debating, examining and outlining the detail of the legislation because it affects every single Australian and every single person in Australia. Its reach is such that it will affect every one of us, so everybody needs to be aware—or at least needs the opportunity to be aware—of what is in it and what its consequences will or could be.

That is why the Democrats believe it is not appropriate to be debating the legislation on a Friday, when the Senate is not normally sitting, in a deliberate and commonly used process of trying to enable enactment of legislation through exhaustion, hoping that senators will decide, `It's going to get through anyway; so we'll just make a few perfunctory comments and let it be over and done with, and then we can all go home.' Frankly, that may be understandable but it is not satisfactory at the best of times and it is certainly not satisfactory in dealing with legislation like this which does affect every single Australian, every single person in the country and every person who may be in Australia in the future.

The legislation directly takes away individual freedoms and individual rights. There can be no dispute about that. Even the Attorney-General, Mr Ruddock, who is certainly no slouch at restricting people's rights and has a long record of doing so, says that the bill `does not unnecessarily encroach upon individual rights and freedoms'. The qualifier `unnecessarily' is a nice subjective term—a single word that tries to alleviate all concern and say, `It's not a problem. None of this taking away of rights and freedoms is unnecessary, so don't worry about it.' Frankly, it is not only unnecessary but also extremely dangerous. It does give more power to the government. Not just this government but governments throughout history—particularly once they have been in power for a little while—do not seem, funnily enough, to be able to see any problem with giving themselves more and more power and with giving more and more power to themselves in a way that prevents the courts from being able to properly scrutinise the exercise of that power.

In adding to the comments that my colleague Senator Greig has already made, I would like to focus on a couple of specific aspects. Firstly I emphasise, to ensure that the Democrats' position is not misrepresented, that we do not oppose the component of Anti-terrorism Bill (No. 2) 2004 which deals with amendments to the Crimes Act. We believe those measures are important and desirable and should be passed expeditiously. That is on the record; it is in the Democrats' dissenting report on the examination of the bill by the Senate Legal and Constitutional Legislation Committee. We support the passing of that component expeditiously; it could even be done now. It is clearly acknowledged to be not only justifiable but also desirable. But there are other significant components that are not only undesirable but extremely dangerous.

It is worth noting the concerns of others in the community. As I mentioned, this legislation went through the Senate committee process—often the only real mechanism for enabling the truth to be exposed about what the legislation will actually do. Many concerns were raised by people in the community with the expertise and the experience to understand what its ramifications would or could be. The Law Council of Australia, representing a range of constituent state law councils, said:

... the new laws have the potential to operate harshly and will unfairly target members of minority groups, especially those of the Islamic faith.

The New South Wales Council for Civil Liberties gave a brief but very chilling assessment of one of these bills. I remind the public that we are dealing with two bills that have been pushed together and so the government is attempting to push through today a wider range of attacks on our freedoms. The Council for Civil Liberties spoke specifically about the component of the legislation that deals with the offence of association with a terrorist organisation. It is the sort of thing that sounds really simple, understandable and justifiable when it is first spouted by a government minister: `We want to be able to catch people who are hanging out with terrorists.' Who would be against that? But when you look at the detail of the power, the enormity of the power and the fact that in many respects that power is being given to a government minister with no significant scope for judicial oversight of its use, you see that it is rather different.

These sorts of offences of making it illegal to associate with certain groups of people tend to be called `consorting legislation' and, as was stated in the submission of the New South Wales Council for Civil Liberties, experience with existing consorting legislation at a state level has shown how it has been open to abuse. It has actually been the genesis of much police corruption. It is always possible for us to make mistakes when we are passing legislation. You have a look at it and you think, `It might be used this way; it might be used that way.' You then make an informed judgment and see how it goes. But when you already have similar sorts of powers operating and you have clear evidence that they are actually being misused—and, according to the submission of the Law Council, not only being misused but actually generating police corruption—then you would be a fool if you were to allow similar sorts of powers to be enacted in other areas or other jurisdictions. It is one thing to make a mistake—we all do that—but not to learn from those mistakes and continue to build on them moves from common human frailty to dereliction of duty. The New South Wales Council for Civil Liberties said that consorting offences had been consistently held to be unconstitutional and a breach of the Bill of Rights in the United States and that, globally, they were not aware of any comparable jurisdiction that had similar provisions in its antiterrorism legislation. What that says is that we are actually going further in this particular attack on people's freedoms than any comparable jurisdiction, as far as the Council for Civil Liberties are aware, and certainly further than the United States in this area of consorting offences. As they say, consorting offences have been consistently held to be unconstitutional and a breach of the Bill of Rights of the United States of America. It is a reminder how weak our protections are in Australia against such attacks on our freedoms.

I repeat the point I made earlier today: the High Court decision last week that addressed mandatory detention might sound like it is just something that affects failed asylum seekers, but it was a clear demonstration that we do not have any constitutional protections against government ministers exercising powers that will deny people their freedoms in the most extreme ways. As long as they can get them into law and get them through the parliament, the courts cannot protect us. If the parliament passes these laws, there is nothing in the Constitution that will protect us. We have no bill of rights, we have no implied rights, explicit rights or underpinning rights that will allow the protection of Australians from misuse and abuse of these powers. They are not there. The only protection left is the Senate. The Senate is the only thing that can stop governments giving themselves these powers through legislation.

That is what we are doing here today. We are allowing laws to be put in place that will give the government these enormous powers to restrict and infringe on people's right of association. We can translate it to another common debate in this chamber about industrial relations. For a government and a party—in the Liberal Party—that regularly talks about freedom of association in an industrial context, as indeed does the Labor Party from the point of view of freedom of association within trade unions, to allow a provision to be put into law that can make it a criminal offence to associate with somebody, even unwittingly, I think is extraordinary.

I would draw the attention of the Senate to the submission that came from the Australian Muslim Civil Rights Advocacy Network. I have spoken in this chamber before about the fear, the apprehension and the concern that exist already in Muslim communities in Australia with the laws that are already in place, let alone the extra ones that are being proposed here today. There is quite clearly a strong belief amongst many in the Muslim community that the existing antiterrorism legislation, the ASIO legislation and other legislation that has already been passed are acting and operating in a way that is targeting the Muslim community specifically.

I remember that, when I raised these concerns before, I think it was Senator McGauran who said, `That is just outrageous. There is nothing in this legislation that even talks about Muslims. How could you say that it is targeting Muslims?' I am not saying that there is anything specific in these bills—I do not think there is any mention of the word `Muslim' or `Islam'. So in one sense it is quite easy to say, `Yes, of course they don't target anybody; they are completely neutral.' But you cannot—when you are doing your job of examining legislation properly in the Senate, anyway—just look at the black-and-white words on the page; you have got to look at what the likely or potential impacts will be and learn from what is already happening and learn from what people in the community believe. We have Senate inquiries not so that we can all sit around and read things a little bit more closely; we have them so that we can hear from the public and hear from the community.

The Muslim community are very concerned not just about the whole trend of the laws but about the implementation and the operation of those laws. I would urge anybody who actually cares about defending the right of association and the freedom of religion—which, again, many in this place would normally speak positively about—as well as people who are concerned about the future viability of multiculturalism and ethnic diversity in this country to read the submission from the Muslim community that was put to the Senate committee inquiry. They are making it quite clear what they believe is already happening. It is not good enough for us to say, `Well, they've got it wrong. That's not what we mean to do. We're not really targeting them.' If you have a clear belief as a community that you are already being targeted, that is the reality. Our saying that it is not happening does not change that reality. We have to listen to these sorts of messages and these sorts of views, because it is these people's lives that are being affected by what we are doing.

It is not likely to affect the lives of most of us here in this chamber, although frankly we cannot discount that possibility either, because as politicians we do a lot of associating with people in the community. It is part of our job. We are supposed to associate with people, communicate with them, support them, listen to them, work with them. People in the press gallery—the vast throngs up there at the moment, listening intently—will have their right to free speech and their ability to work with, examine, explore and expose the truth through people in the community potentially being impinged by this legislation. There was evidence before the Senate committee that outlined how these sorts of laws can specifically be used to restrict freedom of speech within the media, to harass journalists who are seeking to get particular groups in the community to reveal the truth. All it needs is a decision by a government minister for a group or a person who is associated with a so-called terrorist entity and anybody else who talks to them to come under the auspices of these laws. Anyone who attends a meeting with them can come under the auspices of these laws.

As the Muslim community said, the exemptions that are in the bill that say it is okay if you are associating with someone in a place used for public religious worship in the course of practising religion are far too narrow. The Muslim community, as with many others, has large community and religious festivals at outdoor venues. They have classes, they have study groups, they have social events, they have other celebrations—religious events. But the fact is, as the submission from the Muslim community says, they have already suffered unprecedented levels of racism and discrimination in the last few years. There is a trend, which already existed and is now growing, of creating isolation between the Muslim community and the wider Australian community. That is a bad thing in general but even for the focus of this legislation, supposedly aimed at restricting and tackling terrorism, the last thing you want to do is start building divisions, separation and isolation within the Australian community.

To tackle terrorism, the best thing is not to have a whole bunch of laws giving the government more power and taking away the freedoms of the public; it is having as much communication and as much cohesion amongst the entire community as possible. It is when the cohesion amongst the community breaks down that things become much more serious and lead to greater isolation within the Muslim community. It would lead to people not wanting to talk to one another, not wanting to associate with each other and not wanting to be seen with other people from that community for fear of falling foul of this legislation. That fear already exists under laws that are already in place, so it cannot be blithely said that these are invalid concerns or concerns that are understandable but that will not come to pass. They have already come to pass and we cannot just ignore that reality.

When we are talking about restricting people's rights to freedom of association, it means putting in place legal and therefore social barriers to interaction between people within the community. It increases suspicion. Everybody looks sideways at different people, thinking that they had better not hang out with a particular group of people because they are a bit suspect. The fact is that every proscribed organisation so far in Australia has a Muslim link to it. But nobody would suggest that every terrorist related organisation is linked to Muslim activity. The fact is that a large proportion of organisations that have been proscribed in the United States have no Islamic association. It just happens to be that all the ones in Australia do. That fact has not gone unnoticed by people in the Muslim community.

We do need to be quite cognisant of the seriousness of the powers that are being proposed in these two pieces of legislation, particularly anything that restricts freedom of association. Anything that puts in place the threat of a government, a government agent or the police being able to charge or act against someone in the community for being seen with somebody else makes it easy for us all to recognise and sense just how easily that can be misused. We all know groups in the community get targeted politically and rhetorically and they get a veneer of suspicion put over them for various reasons. We have seen it repeatedly in recent years. For it to potentially be made illegal to be seen to be associated, even inadvertently, with particular groups—it is not saying you know they are doing something untoward—can be misused. Someone else thinks they are doing something untoward and you are hanging out with them—that is enough. These are extreme restrictions on our freedom and, as the High Court showed last week, we do not have any other protections in the Constitution. We give these powers to the government, they have got them and they can use them however they want, and there is no protection for Australians against those powers being misused. (Time expired)