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Tuesday, 2 February 2010
Page: 105

Senator LUDLAM (6:12 PM) —Thanks, Mr Acting Deputy President; I appreciate that. When this debate was interrupted earlier, I was discussing the fact that the Greens certainly support the model that has been put forward. In fact, it is the model for a national terrorism legislation reviewer that we have been proposing for quite some time—and it is now five years overdue, so we are glad to at least see the National Security Legislation Monitor Bill 2009 [2010] turn up. But I am perplexed as to why the government thinks that a part-time reviewer working with two staff out of the Prime Minister’s office, with really sketchy reporting obligations and not much of a budget to speak of, is going to be sufficient to undertake the vast amount of work that is going to be required of this office.

The reviewer is going to have to conduct a very broad ranging analysis of an array of complex and sensitive terrorism laws, and perhaps review them every time they are used, when the Prime Minister requests it or when the reviewer chooses to on his or her own motion. The staffing arrangement, two staffers to support one part-time officer, is essentially going to cripple the office at the outset. I think that is the real risk here. It certainly speaks volumes about the government’s actual priorities for this office. They will be able to say: ‘Tick. That was an election commitment—there is something that obviously should have been instituted in the first place—but, by the way, we’re not going to resource it, so good luck to that office!’ As the demands on the monitor increase, obviously so too should the resources, and that is something we will be tracking very closely as the work of this office unfolds.

Independence was an issue that was raised by coalition senators and by us during the committee inquiries as we investigated various iterations of this bill. The government has at least seen the sense in highlighting the independence of the office: the word ‘independent’ is now in the title of the office. So that is something, because the independence of the office is vital if the exercise is to actually increase public confidence and balance terrorism laws. That is why we argued that the title should at least acknowledge that. We would have preferred the title ‘independent reviewer of terrorism laws’, but the government has not gone along with that.

The independence of the office needs to be not just in a name but also in the way that it operates. We believe there is merit in the office existing outside the Department of the Prime Minister and Cabinet. We expressed concern at the evidence provided by PM&C in the Senate inquiry that they already had specific staff in mind for the monitor’s office. So there is a process of hand-picking going on. No disrespect is intended to either the reviewer or the staff that the officers may have had in mind at the time, but we would prefer to see a process where the office can function with genuine independence in mind. We do not have any confidence at the moment in the quality or the quantity of independence of the office simply because of its placement within PM&C and the fact that is where the staff will be drawn from. We would rather have seen a much more broad-ranging process to recruit suitably qualified staff for this important office.

I am also very pleased that the government has recognised the need for Australia’s human rights obligations to be part of the reviewer’s mandate. For me, this is the biggest move we have seen so far on the part of the government, and I am very happy to acknowledge that at least it will now be an intrinsic part of the reviewer’s work to benchmark terror laws against Australia’s human rights obligations. We still have a couple of amendments to tighten up the wording and to make sure that it is absolutely implicit because, really, that is one of the primary functions of the office, in my view.

This exercise is about human rights and about achieving a better balance within the anti-terror laws between security and protection of civil and political rights, which in fact these laws really should be intended to protect. The Australian Greens have consistently sought to link the efforts of the review mechanism to Australia’s human rights obligations under the various treaties and conventions we have signed over a long period of time. One of the things that we will attempt to amend, and that I hope we see opposition and government support for, is that the Human Rights Commissioner should be able to make references to the monitor in addition to the Parliamentary Joint Committee on Intelligence and Security. We recognise the value of having a parliamentary joint committee being able to refer matters to the terror laws reviewer or monitor, and the Human Rights Commissioner should be able to do exactly the same.

One of the key issues that has been left undone and, as far as I am concerned, one where we will be able to make the most improvements to the bill as it sits before us will be around the reporting obligations of the monitor. One of the worst things we could be left with is an office, with barely enough resources to do the job, that reports to the Prime Minister and then some time down the track, at the Prime Minister’s discretion, sanitised reports may or may not make their way into the public domain. We know at the outset that this could be done in a much better way.

The Prime Minister can currently determine the order in which the reviewer attends to the workload, and that again goes to the independence of the office. The officer needs to be able to set his or her own priorities and not necessarily be hijacked by the political imperatives that come from the Prime Minister’s office. Even with the best intentions in the world, unless it is a much larger office, we think the monitor needs to be able to set his or her own priorities.

The only reporting obligation that the monitor will have—and the minister, during committee stage, may correct me on this—will be a heavily edited annual report. That may well be all that we see: an annual report that will come after being sanitised by the executive, by the government—and that surely is not the intention. That is not what was designed here and it is not what the public needs from this office. We believe that the monitor should be required to table a report and the government be required to provide the response within a period of 12 months. If the monitor has undertaken a particular piece of work, that should then be reported to parliament with national security sensitive matters removed by the monitor himself.

The ACTING DEPUTY PRESIDENT (Senator Barnett)—Order! There is quite a bit of background noise and it is making it hard to hear properly, so I will just ask senators to bear that in mind.

Senator LUDLAM —Thank you, Mr Acting Deputy President, I appreciate that. A large number of the amendments that we will propose further down the track in this debate go to the reporting obligations of the officer so that the public knows what the monitor is doing and also knows that he or she has been free from executive interference. We have enough agencies on massive budgets working behind closed doors on the issue of counterterrorism and national security. What we do not have yet is an officer with relative freedom to report as he or she sees fit on the operation of these laws.

In the broader context of how counterterrorism work and the process of law reform are going on in Australia, we are still waiting for a counterterrorism white paper. We have seen substantial proposals for law reform come from the Attorneys-General’s national security legislation discussion paper but there is an absence of a white paper that gives us the strategic direction and some insight into where the government is actually heading on counterterrorism law reform in Australia. We do not have the white paper, but we have been asked to accept a hefty national security legislation discussion paper which, in a way, was quite sketchy—it dealt with some issues and left some others completely unsaid. We believe, in essence, that the monitor should have occurred first. That is something this parliament could have dealt with at the end of 2008 with the private senator’s bill that Senator Brandis spoke of before. Then we should have seen a white paper, so that we would actually know where the government is heading, and then the proposals for law reform that can be properly informed in public debate. Instead, it is happening completely backwards, in the reverse of that order.

I will speak in much greater length during the committee stage about the Greens amendments, but I would firstly acknowledge, as Senator Brandis did, that the government has moved on this. It has accepted some of the recommendations of the committee, and that is always welcome. I have been involved already, in my brief time here, in enough committee work to know that really valuable cross-party work is done and it is always appreciated when the government has the courage to admit that it did not have all the right ideas and was not right 100 per cent of the time. There has been some movement, as I said, particularly in the area of human rights and the way that this agency or office will review human rights obligations. But there is still some work to do, and I intend to work with both the major parties and the cross-benches to make sure we get the very best out of this office that we can.

Because terrorism involves such horrific crimes, as a representative of a party of which one of the pillars is nonviolence, I have a very strong belief that we should do everything that we can to protect Australians and people overseas from crimes of terror. That should not be at the expense of providing for the human rights obligations that we are signatory to and the rights that we hold so dear. Counterterrorism laws are effectively designed to protect, in essence, our way of life, so we have been very concerned for a long period of time that those rights have been eroded by the operation of these laws that still rest, even today, on the statute books. We do not believe that there necessarily has to be that trade-off with the operation of really draconian and restrictive counterterrorism laws. We believe that some of these should simply be repealed without even the dignity of a review by the National Security Monitor. But most of all I look forward to improving this bill as it goes on its way through the chamber, so that we can get the office up and running with some proper resourcing and some really transparent reporting obligations.