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Wednesday, 9 November 2016
Page: 2276


Senator McKIM (Tasmania) (11:12): The Attorney has me started on freedom of speech. As the committee was happy to let the Attorney divert into that, I will just make the obvious point that freedom of speech is not an unfettered right, and I think the Attorney has accepted that with his qualifications around genocide.

But I do want to place on the record that those who are advocating softening or weakening section 18C of the Racial Discrimination Act in this country under the guise of being warriors to defend the right to freedom of speech are conspicuously silent on Australia's defamation laws and on the capacity of corporations to issue SLAPP suits, which are deliberately designed to stifle public debate in this country. They are conspicuously silent on section 42 of the Australian Border Force Act, which applies draconian restraints or constraints on freedom of speech on those who work in Australia's detention centre regime.

I can see you shifting in your chair—

Senator Brandis: No, I'm not—

Senator McKIM: No, not you, Attorney—the Chair. I think he is advising me nonverbally that I am going off topic here, so I am going to leave it at that because I have respect for the process that we are in. This was just a brief response to some of the comments that were made about freedom of speech.

Attorney, I wanted to draw your attention to a report from the Scrutiny of Bills Committee, which has just been released this morning. I am indebted to my colleague Senator Rice for drawing this to my attention just a brief period of time ago. I wanted to put to you a couple of the observations of that committee in relation to this bill and invite you to respond to those observations.

Firstly, in relation to the issue of trespass on personal rights and liberties as they relate to the right to a fair hearing, the Scrutiny of Bills Committee has found as follows. I should preface the quotes that I am going to read out by saying that this relates to the controlee, the subject of the control order, being given only notice of allegations on which the control order request was based, and the controlee is now required—sorry, that was the previous circumstance: the controlee was required to be given notice of the allegations on which the control order was based, and now the controlee is required to be given sufficient information about the allegations on which the control order was based. I make no adverse comment on that particular change, but it is worth pointing out that the committee sought advice as to whether there is sufficient information which will be provided to a person before a special advocate has been provided with national security information, and the committee observes that it is at that point that communication between the two—that is, the controlee and the special advocate—is heavily restricted.

The committee's report finds that you, Attorney, advised that there may be circumstances in which a person who may be subject to a control order, the controlee, will not be given sufficient information prior to a special advocate seeking the sensitive national security information. It observes the following:

… if a controlee is only given 'sufficient information' about the allegations against them after restrictions are placed on communication with the special advocate, there will be limited opportunity for proper instructions to be given to the special advocate.

The committee then goes on to observe that this would appear to defeat the purpose of the special advocates scheme in instances where the information is not provided to the controlee before the special advocate has received the sensitive national security information.

That is the first observation of the committee that I will invite you to respond to. There are a couple more, Attorney, but perhaps we can do them sequentially. I will offer you the chance to respond to that observation by the committee now.

The TEMPORARY CHAIR ( Senator Sterle ): Before I call the minister, I will remind you the amendment is being moved by Senator Leyonhjelm.