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An empty Senate as Terrorbill becomes law

Two final Senate speeches as John Howard's overkill-terrorism Bill passes into law

" is very important that people looking back on this moment know that the opposition caved in, to a government with a one-seat majority, to taking away Australians' rights without any return defined in terms of security and to eroding those rights unnecessarily--in particular, the right to free speech and the right not to be held without charge, trial or the ability to have a defence."

"These are very serious matters, but this debate has been turned into a nothing, a farce and a joke. Where are the government defenders? The chamber is almost empty. I think there must be a great deal of a shame factor on the government side about the whole process." (Greens Senator Bob Brown, 6 Dec 2005)

John Faulkner on the Anti-Terrorism Bill

[introduction by Tony Kevin]

As journalists and special interest groups get ready to write their editorials and commentaries for tomorrow, which I predict will generally be on reassuring lines (i.e. "Yes, it was a very dangerous bill originally, but the political process in the Senate over recent weeks, flawed and rushed as it was, has made it all a lot better and we respectable folk e.g., publishers, writers, and creative people, can again rest easy - politics is the art of the possible, and there is a sort of government promise that sedition will be reviewed next year"), here is a salutary reality check - from Senator John Faulkner, in last night's Senate adjournment debate. (Proof Hansard, Senate 5 December, page 129).

Faulkner is unsparing in his condemnation of the Anti-Terrorism Bill (No. 2) 2005. He uses the adjournment debate to get important things he wants to say on the Hansard record - as he did in 2002, when he put his three historical speeches asking questions about the sinking of SIEV X and the Australian Government's people smuggling disruption program in Indonesia, in three successive adjournment debate speeches on 23, 24 and 25 September 2002 [NOTE edited: full texts are on Marg Hutton's].

Here is what he said on the Anti-Terrorism bill late last night, after hearing the day's truncated debate. I assume he already had (detailed or broad) knowledge of the latest amendments negotiated (since the party room meeting last Wednesday night) between the Attorney-General and the key government senators on the Legal and Constitutional Committee (Senators Marise Payne and George Brandis), and that these senators were referring to favourably in their statements in the Senate yesterday.

Historians will go back to Faulkner's speech here, when they come to evaluate Payne's and Brandis's role in this process of lawmaking under gross government pressure, and ask - why did our Parliament let so bad and dangerous a law ever be passed?

Tony Kevin, 6 December 2005


Senate Adjournment Debate
5 December 2005

Anti-Terrorism Bill (No. 2) 2005

Senator FAULKNER (New South Wales) (11.22 pm)--This afternoon the government used their Senate majority to block debate on the second reading of the Anti-Terrorism Bill (No. 2) 2005. It is chillingly ironic that the antiterrorism bill, with its potential to infringe the freedom of speech of many in our community, is itself the subject of a gag. It was legislation that ought to have been exposed to proper scrutiny. These are bad laws written for bad reasons. The government acknowledge that these laws are flawed. They have admitted that they need to be reviewed. But, rather than allow proper legislative process with adequate scrutiny and amendments, the government propose passing the laws first and fixing them later. A responsible government one might think would get the laws right before they got them passed. A responsible government might try to fix the problems in the laws before innocent people's rights and liberties are unnecessarily infringed.

Just how flawed are these laws? To start off with, a government controlled and chaired Senate committee inquiry into the antiterrorism bill made 52 unfavourable recommendations, one for every week of the year. And that is after a farcically abbreviated inquiry designed to prevent genuine scrutiny of the bill. I will not go through each and every one of those recommendations, but let me draw your attention, Mr President, to a few key issues.

First of all, I draw your attention to schedule 4, control orders and preventative detention orders. These orders are designed to make it possible for people to be put under house arrest or in actual detention when no charge has been proved or even brought against them. After the public outcry when an early draft of this bill was made public by Jon Stanhope, the ACT Chief Minister, some judicial review of these orders was included in the bill. But those changes remain inadequate. Serious questions remain about the constitutional validity of these provisions and serious questions remain about the necessity of these provisions when existing powers of arrest for broadly defined preparatory terrorist offences, combined with ASIO's powers of questioning and detention, provide alternatives with less impact on civil liberties.

I would also like to draw your attention to schedule 7, which relates to sedition. Sedition is an archaic and anachronistic offence. It has no place on the modern statute book. Our federal criminal law already provides an avenue for prosecuting those who incite others to crime. The sedition provisions in the antiterrorism bill in part duplicate the existing law and in part go dangerously beyond it. It will be possible for a person to be prosecuted even if the conduct they urge is not a crime. The Howard government cannot sugarcoat the violation of freedom of speech and freedom of expression in these sedition provisions of the bill by including a new offence of incitement to inter-group violence. In principle this is a welcome protection for members of the Australian community suffering vilification and violence. Why not, then, put it where it belongs--in anti-vilification law?

It is a new development for John Howard's government to show concern for protecting the rights of the marginalised and the minorities in our community. It was, after all, Mr Howard whose response to Pauline Hanson's inflammatory, ignorant and racist comments was a mild, 'You may not agree with everything that is said but you defend the right of people to participate.'

It was Mr Howard's government that whipped up anti-refugee feeling with false stories about kids overboard and false speculation about al-Qaeda terrorists on asylum seeker boats. Under John Howard, as former Liberal Prime Minister Malcolm Fraser said last week, the Liberal party 'has become a party of fear and reaction.' It has allowed--and some would say promoted--race and religion to be part of today's agenda.

The narrow provisions of the antiterrorism bill will do nothing to protect those in real danger of vilification and racial and religiously motivated violence in Australia.

But they will allow the government to pretend that the revival of sedition in our modern legal code is not a massively retrograde step. The good-faith defences in the antiterrorism bill are limited and inadequate, and minor changes to these defences in recent days do little to blunt the effect of the sedition provisions in these laws.

What is the government proposal to deal with the massive problems with these new sedition laws? They will review the legislation some time into the future.

That is right: they will pass legislation that they know that members of their own government have told them is flawed, badly flawed, and then they will fix it later.

If legislation is flawed, it ought to be fixed. And if it cannot be fixed, it should not be passed.

That is the responsible attitude. That is the response of a responsible government, a responsible Prime Minister, a responsible Attorney-General. That is the approach that they would take; but then a responsible government would not take the nation to war based on a lie. A responsible Prime Minister would not deny the connection between his own grievous error and the increased danger to Australians and Australian interests from terrorism, and a responsible Attorney-General would not allow shoddy laws to be put to the parliament for cheap political effect. What a pity then that Australia does not have such a government, such a Prime Minister or such an Attorney-General.

Instead, Australia has Mr Howard and Mr Howard's government. Australia has Philip Ruddock fresh from his time as minister for immigration, where he got plenty of practice locking people up or making people disappear. Having done John Howard's dirty work at DIMIA, from lies about 'children overboard' to more than 200 unjustified and illegal detentions and deportations, now Minister Ruddock is doing John Howard's bidding in a new portfolio, the Attorney-General's portfolio. Once a self-styled moderate, Philip Ruddock has become the pallid poster boy for the inhumane face of the Howard government's policies. He oversaw the development of a culture in DIMIA that prioritised detention and deportation over accuracy and fairness. I just ask this: what kind of culture will Philip Ruddock oversee when these laws are passed?

Senator Bob Brown's speech (In Committee)

Anti-Terrorism Bill (No. 2) 2005

6 December 2005
In Committee Speech

Senator BOB BROWN (Tasmania) (12.32 p.m.)--At this stage we are faced with a very large number of amendments. It is obvious that not all the amendments are going to be dealt with before the guillotine is applied. There will be different priorities regarding the amendments, and I am concerned that, if we now move seriatim into these, we will only get through a small proportion of them and the rest will not be debated at all. Thus, with the committee's concurrence, we will make general contributions about the amendments that the various parties are bringing before this committee before moving to the specifics.

We only need to reiterate what a farce this committee faces. We have 3 hours to debate not just extremely important amendments coming from the opposition and crossbenches but scores of amendments from the government itself, and they simply cannot be debated. So the Committee of the Whole is going to vote on amendments and, indeed, the legislation itself without having debated them. That is all the more poignant in view of the fact that we are talking about legislation which is to improve the security of this country and, according to the government, to balance the democratic values of this country with the right of people to have security.

That is not going to be balanced here. There is going to be no balance; there is going to be no adequate debate. What we have is the executive truncating the time for discussion in a way that is unprecedented in this parliament on a bill like this in the last 10 years. Moreover, the outcome of the debate is known before we get under way because every government member is going to support it and, what is more remarkable, the opposition is going to support it. The amendments will not get up. The final vote will be as the government has ordained it. That is the nature of the Senate in 2005.

Very early in the piece, the Greens will move an amendment to incorporate the International Covenant on Civil and Political Rights into this legislation as the measure by which courts might determine the fate of anybody brought forward for infringing this new security legislation. That is, Australia has ratified the International Covenant on Civil and Political Rights, and the Prime Minister, amongst others, has said, 'This legislation does not infringe on it.' The Greens are saying, 'Then let the court take note of that by having the International Covenant on Civil and Political Rights incorporated into the legislation as a de facto bill of rights, and let's also have the covenants which Australia has ratified or signed--on the rights of the child and against torture--brought into this legislation as well.'

Then there can be no doubt when a court is looking at the rights of somebody who, for example, is detained without charge over a prolonged period of time, and there is a challenge to that by lawyers who say the Australian norm has always been that a person is charged, that a person has an opportunity to defend themselves and cannot be held for a prolonged period of time unless the charge that is made is warranted. The International Covenant on Civil and Political Rights makes it clear that people cannot be detained without knowing why they are being detained and without having an ability to defend themselves. The bill of rights in all countries, which have bills of rights, and most countries similar to Australia do, outlines similar safeguards for citizens, but we do not have that in Australia.

The question to the minister is: what is the government's objection to having the International Covenant on Civil and Political Rights referred to in the legislation as a measure by which the rest of the legislation may be adjudicated? What is the problem with having the international convention against torture and cruel and unusual treatment of citizens who are held referred to in this legislation so that courts may make sure we do not infringe that obligation under that international treaty? What is the problem for the government in citing in this legislation the rights of children, internationally adhered to? If the government has no intention of allowing, and does not want, this legislation to be inconsistent with that international obligation then the test for that, whatever the argument, will be the government agreeing or disagreeing with the Green amendment.

What is going to happen here, however, is that the government is going to vote against the international covenants, which uphold the rights of all citizens in Australia. They are a bottom line in civilised society. The government is going to vote against those being incorporated in this legislation because the Howard government knows that this legislation infringes civil and political rights by national standards let alone international standards.

Dr Watchirs, who upholds this measure in the ACT, which is the only jurisdiction in Australia with a bill of rights, said this to the Senate Legal and Constitutional Legislation Committee:

The bill does not comply with the ICCPR in two main respects--the right to a fair trial and the right to liberty. Control orders may impinge on other rights, but I will concentrate on these ones. The fact that the person who is subject to a control order or preventative detention order does not have full access to the information means that they are not given a fair trial. The time frame for an ex parte control order not being limited, like seven days in the UK, but being up to a period of 12 months, depending on when the court confirms it, is also a breach of the right to a fair trial. The problem of confidentiality between a lawyer and a client in preventative detention is also a problem in relation to a fair trial. And, lastly, the lack of ability to communicate to third parties where the person is detained and the fact that they are detained under this act, goes much further than the UK act. I think the five-year penalty for breach of disclosure provisions and breach of control orders is grossly disproportionate. They are civil offences and a civil administrative process, particularly in preventative detention, and to have a criminal offence of five years is not proportionate.

What Dr Watchirs said was echoed by many other representatives coming before the committee, and we saw the advertisement from the Law Council of Australia yesterday.

This legislation breaches Australia's international commitments, and the government knows it. The Prime Minister knows it. That is why the government will vote against the Green amendment to have the international covenants protecting the rights of Australians written into this legislation so that courts can make the decision about whether a person brought before the court is being treated in accordance with international conventions and a century of developing civilising law here in Australia. There is no doubt this is a reversal, there is no doubt this is an infringement, of international conventions and there is no doubt the government knows it. What is more extraordinary is that the opposition is going to support, at the end of the day, legislation, which excludes reference to these conventions at the same time. That is extraordinary.

The remarkable fact is that we are going to get more of this further down the line. My colleague Senator Nettle will no doubt be drawing the committee's attention to other matters. But let me say this: what a farce this Senate has been turned into by the Howard government. What a farce that we should be here today going through a process of a few hours debate on some of the most critical issues about how our democracy is defended. Australian citizens' liberties, their freedom of speech and their right not to be detained without charge are to be stripped away without any guarantee that it is going to help defend us from terrorism. There is no guarantee at all; never has the government been able to cogently argue that this legislation is going to defend us from terrorism. Sure, it makes the bald statement but nowhere is the reasoned, logical argument that should come with that statement.

This legislation is a political document much more than a defence of Australians' security document. A very dangerous slide to McCarthyism is involved in this legislation being slammed and sledgehammered through the Senate today. We are in a new period of McCarthyism and we need to know that and understand it, and to worry that this time it will not be turned around.

Using a law like this, citizens will be brought before courts for political reasons rather than security reasons. The reach of this law is not defined by and constricted to security. This law's ability to truncate free speech is not defined by this legislation. We know that inherently this legislation, at the minimum, will lead to self-censorship in this country. Brains far more concentrated on this matter than the Prime Minister's have made that abundantly clear in the public debate leading to this farce of a debate in the Senate.

The Prime Minister has turned this Senate into a rubber stamp--it is a Star Chamber as far as this legislation is concerned. The rights that we hold dear have been found convicted of infringing on security, as far as the Prime Minister is concerned. Australians' ability for free-ranging and free speech has to be cut back, the Prime Minister has judged. We are now supposed to be debating whether that is a good thing or not, but the real fact of the matter is that the numbers are with the Prime Minister. What's more, he and this government claim that this is what the people of Australia want. That is not so, but it does not prevent the government from claiming that the people of Australia want their rights stripped back on trust, because there is no argument that in some way or other it is going to increase their security. We maintain that it does the reverse: it erodes the security of the Australian democracy. And we are particularly fearful of what is coming further down the line. This process has not stopped. Attorney-General Ruddock and Prime Minister Howard have more erosions of freedom coming down the line.

Freedom of speech, for goodness sake, is about to be taken away. And the Labor Party, which disagrees with the antisedition components, is going to vote for it. That is how manipulated this process is. I say to the Labor Party: change your mind. This is too important to signal to the government that the opposition is onside. What is more remarkable to me is that it seems that debate in the media has been shut down. Labor is onside, the government wants it--end of debate. We may well come to rue the day.

As far as the Greens are concerned, it is very important that people looking back on this moment know that the opposition caved in, to a government with a one-seat majority, to taking away Australians' rights without any return defined in terms of security and to eroding those rights unnecessarily--in particular, the right to free speech and the right not to be held without charge, trial or the ability to have a defence. These are very serious matters, but this debate has been turned into a nothing, a farce and a joke. Where are the government defenders? The chamber is almost empty. I think there must be a great deal of a shame factor on the government side about the whole process. Whatever it is--


Senator Ellison--You are talking--that's why.


Senator BOB BROWN--Exactly. That is the point. It is because they cannot defend themselves against the point of view that is being put forward at the moment. (Time expired)