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Wednesday, 1 December 2004
Page: 10


Senator BROWN (10:08 AM) —The problem here is that the minister cannot distinguish between the political system and the judicial system, and that is quite clear in what he just said. We are not arguing that plumbers who are going to fix up a pipe at ASIO should not get a clearance or that somebody working for a minister should not get a clearance. What we are arguing is that, when it comes to the court system, a political decision should not be made as to who is or is not a fit barrister to appear before a court. The evidence should be brought by the government to the court and the court should make that determination. This is a breakdown of the division between politics and the courts, because the politician—that is, the Attorney-General, the government of the day—is going to make that determination. That is what is wrong with this system.

Let me give you another example. We have just today got the news about the Red Cross finding that the circumstances at Guantanamo Bay are in breach of international law. There has been torture at Guantanamo Bay, but our government denies it because it is embarrassing to say so to the United States government, which is responsible for the torture. That is a political decision. What we do know is that the courts, even in the United States, are finding against the military commission system, which is a breach of the separation between justice and politics in the United States. It is a breach that has been taken aboard by this government, which no longer recognises the difference and is intruding more and more into the court system. Where you get a failure by the body politic to honour the court system, what does it do in the United States under the Bush administration? It sets up its own false court system—a military commission, a kangaroo court. What does the Howard government do? It says, `We endorse that.' So you have this dangerous breakdown of the division between the judicial system and the political system, where politicians invent their own version to get a better outcome as they see it. What is happening at Guantanamo Bay is outrageous in terms of the Australian and the American system of justice. It has been put at arm's length from the Australian system and the American system of justice by the politicians. It has been found guilty by the Red Cross, in whom we may trust.

The legislation we have today is a further intrusion of the political system into the court system. It is taking away the court's right to determine who is or is not a fit person to appear before it as a witness, who is or is not a fit person to appear before it as a barrister and what is or is not appropriate information to be kept off the public record in the national interest. It is dangerous legislation. It is a further erosion of the safeguards in our democratic system that the courts will not be intervened upon by political considerations. That is what this legislation does. It allows the politicians of the day to start interfering with the court system in Australia. We should safeguard against that, and the Greens' amendments do safeguard against that while looking after national security. That is why we are so strongly in defence of the amendments we have brought forward. They are not just Green amendments. In fact, they are not Green amendments at all; they take the recommendations of the Senate Legal and Constitutional Legislation Committee, the Law Council, several witnesses before the Senate committee and groups who have spoken out in public, such as Amnesty International.