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Monday, 15 November 2010
Page: 1205


Senator LUDLAM (5:13 PM) —I will pick up where I left off right before question time. The National Security Legislation Amendment Bill 2010 has been subject to a great deal of review by way of a process that the Australian Greens would normally support—that is, an exposure draft that went out quite broadly through the legal fraternity and elsewhere to civil libertarians, people involved in terrorism cases directly and so on. A huge number of submissions were made. Once we saw the exposure draft, we got the idea that the Australian government would eventually move on the appointment of a national security legislation monitor to go through the terrorism laws that have been introduced over a period of five or six years—to just work through the items that were so inappropriate it is embarrassing that they had even made it onto the statute books. They do not deserve the dignity of a review at all by the monitor when that office eventually comes into effect.

I introduced a bill that either simply repealed or made substantial amendments to many of the different laws of terror. That bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs. To my great surprise, rather than doing what a government chaired committee would normally do, which is pay it lip service and then just kill it and propose that the bill not go forward, the work that we did was referred back through to the Attorney-General’s Department to be contemplated in parallel with the work that they were doing on the government’s bill. In other words, the committee certainly did not endorse my bill or any of the proposals therein but the work itself was recognised and the proposals that we put forward were recognised because they were simply invisible—as far as we can tell—in the government’s contemplation of these laws of terror.

It is then extraordinary to see out of that process that absolutely none of those ideas were taken up. We cannot find a hint anywhere that any of those ideas were put forward. When we go into the committee stage of the bill—and I warn the chamber now that I fully intend to do that—we will go into a bit more detail of exactly the opportunity that we are missing today. We have been waiting for this for two years. The legal community has been waiting for this for two years. People who have been unnecessarily surveilled and spied upon have been waiting for this for many years and the opportunity is about to be missed.

The review process, I think, has seen the government pass up a very important and perhaps once-in-a-parliament opportunity to ensure that Australia would remain in compliance with our international human rights obligations, because that is a part of what is at stake here. Instead, we have got this half-hearted and quite feeble attempt to ensure a more proportionate response to antiterrorism in Australia which, apart from a number of cases which I will highlight on the way through as being genuine improvements, it quite simply fails to do.

There is no real justification anywhere in the bill, in the explanatory memorandum and in the second reading speech, and I am presuming in the comments that are to come in the committee stage, for the continued existence of many of the extended powers that law enforcement agencies have been granted since 11 September 2001. Maybe that is because no such justification actually exists in many of the circumstances. The Australian Federal Police, for whom many of these provisions have direct relevance, have at no stage made a submission to the consultation either on the exposure draft or when the substantive bill was put to the Legal and Constitutional Affairs Legislation Committee. We did not hear anything from the AFP. We brought them in and had them give evidence directly, but they did not see fit to make a submission.

The review process, no matter how robust, is completely pointless if the government is then refusing to listen to the advice of the experts that were made, in this case, through 50 submissions to the consultation and 23 submissions on the bills referred to the Senate Legal and Constitutional Affairs Legislation Committee. If you have a look at the tenor of that second batch of submissions to the Legal and Constitutional Affairs Legislation Committee, you will see it is in essence saying, ‘Hang on a second, why didn’t you listen to us the first time? We will resubmit what we told you before, six or eight months ago, because you appear to have not read a word.’ The government there decided to ignore the majority of recommendations put forward by legal experts at both stages of the consultation process. The failure of the government in this way to utilise the process that it established is noted by the Gilbert + Tobin Centre of Public Law which stated:

... of the 267 amendments to Australia’s anti-terrorism legislation proposed in the Bill only 66 of these reflect changes made since the Exposure Draft ... most of these 66 changes can be described as technical (as opposed to substantive) changes.

Organisations that have assisted the parliamentary process in Australia’s antiterrorism legislation must be suffering from what we think is submission fatigue and a sense of hopelessness as Australian Lawyers for Human Rights continued calls for reform to Australia’s antiterrorism legislation have fallen upon deaf ears.

I commented at the outset of my speech on the degree to which the government has moved with haste to quadruple or more ASIO’s resourcing, budget and staff while at the same time being strangely unable to fill the position of the Independent National Security Monitor, which was passed by the Senate earlier this year. Madam Acting Deputy President Troeth, partly through your work, in late 2008 the Senate passed such a bill. I find it utterly extraordinary that the government passed this legislation six months ago and has not seen fit to appoint a part-time person to this role. I would be very interested to see if the minister confirms this, but the government does not want the monitor in place until this feeble attempt at law reform has gone through without criticism from somebody who, I believe, is going to have a great deal of standing and a lot of status in these debates as they are to come.

The government has basically held the monitor out of the way so that it cannot critique this lax attempt at law reform we are seeing this afternoon. I have very little doubt that, if we did have a proper look at whether these laws are proportional, we would need to be recommending much deeper changes than we are seeing this afternoon. All we are seeing today with the proposed government bill effectively is the entrenchment and the consolidation of what was put through in the Howard-Ruddock years, which many people, if they knew what was there, would regret. I intend to take a little bit of time this afternoon to make sure that people are aware of what exactly is still on the statute books that the government is refusing to move. We have been long-time campaigners, as have many coalition senators, for the establishment of such an office and it is a travesty that the office does not exist as yet.

In our additional comments to the report of the Legal and Constitutional Affairs Legislation Committee into the bill, we said that this bill should be deferred until such time that the office of the monitor is on its feet and has had time to review the enormous volume of material that exists and the submissions that have been made. We do not think that this legislation should be passed at all, unless of course the minister is able to stand up shortly and say that as soon as the monitor is up and running the government will come back with a full and frank review of the Australian terror laws, because in the meantime we appear to be simply wasting our time and in some cases entrenching laws that should never have been placed on the statute books in the first place.

The Australian people deserve all legislation to be subject to a very high degree of scrutiny, but particularly laws which impact on our fundamental civil and political rights, which this bill indeed does. They include, for example, the presumption of innocence, which is something that we seem happy to dispense with; the right to a fair trial; freedom of expression; the right to privacy; and freedom from arbitrary detention. I will show this afternoon, as this debate proceeds, that every single one of those fundamental legal principles, some of them hundreds of years old, are threatened by laws on the books that the government is either entrenching or refusing to roll back.

Australia does not have a human rights charter. We do not have a human rights act in any form because the government was too weak to even proceed with that when the criticism got too great. So we have no constitutional or legislative protections of human rights or, at least, very limited protections. Sometimes we might throw to examples in the UK or the United States where there is a constitutional bill of rights. We have no such protections in Australia. Many of the protections that we assume exist are just that—assumed or implied. These laws, I think, go quite a long way towards eroding them.

It makes the process of reviewing these laws all the more important, and the contempt with which the government has treated the consultation and the Legal and Constitutional Affairs Committee process—and I do not use that word ‘contempt’ lightly, but that is what it was—combined with a failure to have established the independent monitor means that we are just ploughing along with bureaucratic inertia and one minister starts to look very much like the other. It is for this reason that we believe that debate on the National Security Legislation Amendment Bill 2010, this bill, should be deferred and it should be referred to the National Security Legislation Monitor so that we can at last get an independent idea of whether these laws are proportional, whether they are necessary and whether the freedoms that we are giving up—whether we know it or not—are actually making us any safer. This will ensure that the bill and Australia’s antiterrorism legislation are subject to proper review by an office that is independent of government. We moved, with some assistance from the coalition, some amendments to that monitor bill to make sure that the reporting obligations of that office would be directly to parliament, that they would not be subject of laundering—if I may use that word—through the Prime Minister’s office to make sure that they were politically saleable. So at least there is something there. But in the meantime the government has decided to circumvent even that meagre protection by simply preventing the office from getting on its feet in the first place.

I found Senator Brandis’s comments earlier really quite extraordinary, that the amendments that we have proposed which are entirely reasonable and actually quite moderate would not be acceptable to the coalition simply because they do not match what the Legal and Constitutional Affairs Committee recommended. What a remarkable abrogation of responsibility. I hope that Senator Brandis is in here some time later during this debate to explain whether he even read the amendments that we proposed.

I will leave the chamber in absolutely no doubt, as we proceed into the committee stage of this debate, as to why we think we are making a grave mistake here. If other parties will not come to the defence of Australians’ civil and political rights, then the Australian Greens certainly will.