Speaking about the Bill: Parliament speaks out
On this page, three remarkable speeches in reply to the Anti-terrorism Bill No 2, 2005 - from 29 November 2005. The first speech is by Senator Marise Payne (NSW) who also chaired the Legal and Constitutional Legislation Committee's Inquiry into the legislation.
Senator Payne's speech on the presentation of the Committee's report in the Senate is followed by two Second Reading speeches in the lower House - by Hon Simon Crean and Mr Peter Andren.
29 November 2005
Report of Legal and Constitutional Legislation Committee
Senator PAYNE (New South Wales) (4.33 p.m.)--I present the report of the Legal and Constitutional Legislation Committee on the provisions of the Anti-Terrorism Bill (No. 2) 2005, together with the Hansard record of proceedings and documents presented to the committee.
Ordered that the report be printed.
Senator PAYNE--I seek leave to move a motion in relation to the report.
Senator PAYNE--I move:
That the Senate take note of the report.
This legislation, the Anti-Terrorism Bill (No. 2) 2005, is the latest in a suite of legislation placed before the Australian parliament since approximately mid-2002. Its derivation and background are no secret to any of us. It is based in the changes that have taken place in the international security climate since the events of September 2001. Usually when bills such as this come before the Legal and Constitutional Legislation Committee a member of the committee--notoriously, on many occasions, Senator Mason--asks the authorities that appear before us when they seek more power, as is done comprehensively in this legislation, what powers they are prepared to give up that perhaps they no longer have use for. The committee rarely receives a comprehensive answer to that, but I think it is a very important message for the Senate to have in its mind in consideration of this report.
The Senate Legal and Constitutional Legislation Committee has over several years now considered very serious measures in legislation placed before it by the government and endeavoured on all occasions to examine those responsibly, seriously and comprehensively. It has been noted that in recent times the Senate committee has been presented with a swift timetable in which this action has been required. That is so, but we believe that in presenting this report today, of in excess of 250 pages, we have examined the issues and concerns raised during the committee's inquiry in relation to the key provisions of the bill and that we have made constructive suggestions in response to many of those as well as taking into account, of course, the responses of the authorities, the law enforcement agencies and the Attorney-General's Department. In a report which I would describe as a consensus report--that is to say that the elected members of the committee are agreed on the substance of the report, although some have made additional comments--the committee has made 52 recommendations which we believe go a long way towards enhancing the operation of the bill. The report sets out those key findings and recommendations and I would like to speak briefly to some of those.
In relation to preventative detention and control orders in schedule 4 of the legislation, the committee received a significant amount of evidence from a broad cross-section of the community, from legal practitioners, academics and government representatives in relation to the introduction and operation of those orders. There is no doubt that they are a very serious incursion into the way in which we currently expect to be able to live our lives in Australia. We are told that they are in response to very serious incursions into and threats against the way we expect to be able to live our lives in Australia. In that regard, the committee gave very careful consideration to the evidence and particularly to the very practical advice that was given to us by the Human Rights and Equal Opportunity Commission, the Commonwealth Ombudsman and the Inspector-General of Intelligence and Security.
A cursory reading of the report's recommendations will indicate that many of the recommendations are aimed procedurally at enhancing the safeguards attached to preventative detention orders and control orders, and many are based on the advice received from those three very important authorities. They include the protection of minors when in detention, certain rights of detainees in relation to making representations on their own behalf and access to lawyers. We also advocate that the Ombudsman have a very active oversight role in this process. We believe that those recommendations are balanced, that they will strengthen what are very important procedural safeguards without undermining the capacity of the police, most importantly, to respond to identifiable terrorist threats.
I also want to speak in relation to law enforcement issues and the ASIO powers that are contained in various schedules of the bill and in chapter 6 of the report. The requests for expanded powers both from law enforcement agencies and from ASIO are considered very seriously by the committee. In our recommendations we have endeavoured to address concerns raised about the potential breadth of those powers. We have, for example, suggested the insertion of several statutory safeguards and what might be described as checks and balances on the use of the new powers that will enable an adequate protection of the civil liberties that we have come to expect in this nation without undermining, as I have said before, the powers of police and ASIO to do their job in this very difficult environment. We have suggested the tasking of the Commonwealth Ombudsman with comprehensive oversight of the use of those powers under schedule 5, the preservation of legal professional privilege and other duties of confidence and the limitation of the request for ASIO's extended powers to investigations that specifically relate to suspected terrorist activities and terrorism offences only.
The committee received some evidence in relation to the financing of terrorism and the money-laundering aspects of the bill. To address those concerns, the committee has suggested that the bill commence on a date to be proclaimed as opposed to a fixed date. It is hoped that government and the relevant interests in this area are able to come to an agreeable solution on that matter.
I want to speak also about the matter of reporting to parliament on the review and sunset provisions. It will be evident from the report that the committee takes its role and the parliamentary role in this area very seriously. We suggest six-monthly reporting on the use of preventative detention and control orders. We suggest a five-year review of the legislation by a committee similar to that currently known as the Sheller committee and a five-year sunset period. All senators will know that the original bill proposed a 10-year sunset period. The committee, with the best of its diligent searching, has been unable to find an equivalent sunset period in other legislation. These powers are extraordinary in nature and we believe that they should be reviewed publicly, within a shorter time frame, before there is a decision on whether to extend them.
I want to finish on the question of schedule 7 of the bill and chapter 5 of the report, and that is the question of sedition and advocacy. Almost 300 submissions were received by the committee. The overwhelming majority of those submissions raised very serious concerns about the proposed updating of sedition offences. They came from a range of organisations and, I think it is fair to say, not just the "usual suspects". During his second reading speech the Attorney-General announced a review of these provisions to be conducted next year. In light of that, in light of the very serious concerns raised with the committee, in light of the state of existing laws, which include the offence of treason, the crime of incitement and the laws contained also in this bill in relation to advocacy, the committee considers that the comprehensive review indicated should take place before the sedition provisions are enacted. As a whole, we considered it was inappropriate to enact legislation which is in advance considered to be in need of review.
We understand that this is a very serious recommendation. We suggest that the Australian Law Reform Commission is an ideal body to undertake that review to inquire into the most appropriate legislative measures to address the issue of sedition and incitement of terrorism. As you will recall, Mr Acting Deputy President Brandis, there was extensive discussion of the provisions of the bill and of the revival of the concept of the offence of sedition and where that would take us were we to have this enacted and then a review presented to us. In the event of that recommendation not being taken up, the committee has made a number of alternative suggestions, which concern sedition, to address measures provided for in the bill that were also of concern. The committee makes this recommendation very seriously and with awareness of its importance.
As I said earlier, the inquiry took place over a short period of time and the hearings were intensive, with in excess of 10 senators participating in virtually every moment of those hearings. It is an indication of the level of interest that so many submissions were received in such a short period of time. It is important that I, as chair, place on record my thanks to members of the committee and participating senators who assisted in this process and to indicate that the general consensus nature of the report indicates the very important process Senate review can provide. The consensus nature of the report indicates that we can move forward on these extremely contentious areas of legislation and these invasions, some would say, of civil liberties which match the invasions of our own way of life in the current security environment.
Second Reading Speech
29 November 2005
Mr CREAN (Hotham) (6.09 p.m.)--I rise to speak in support of the second reading amendment moved by the Leader of the Opposition to the Anti-Terrorism Bill (No. 2) 2005. Labor has argued consistently since 2001 that we need balanced laws--laws that are tough on terrorists but that protect our democratic freedoms. The legislation before the House does not get the balance right. Labor's amendments contained in the second reading amendment would get the balance right, and the bipartisan recommendations of the Senate Legal and Constitutional Legislation Committee, tabled just yesterday, would have also considerably moved in the direction of getting the balance right. The bill in the form before the House reflects this recurring failure on the part of the Howard government to get the balance right when it comes to national security and to protecting civil liberties.
It does not go far enough in protecting the security of Australian citizens by, for example, strengthening security at our airports, on our wharves and on the railway platforms of our great cities or securing our exposed coastline by establishing a coastguard. What it does, in failing to do those things, is actually attack the civil liberties of those very citizens. Labor argues that we need tough antiterrorist laws, but they have to be introduced in a way that does not take away the very rights and freedoms that the terrorists themselves aim to destroy. The basic rights of our citizenry include the right of freedom of speech, the right to know the crime with which you are charged, the right to defend yourself, the right to a fair trial and the right not to be continuously detained without charge or trial.
Every time this government has introduced new laws to protect us from terrorism it has eroded some or all of these rights. It failed to get the balance right in 2002 and it failed again in 2003. It has failed again with this legislation. As on previous occasions, Labor's amendments do get the balance right and I urge the government to accept these amendments. I urge the government to listen to its own members on the Senate Legal and Constitutional Legislation Committee: Senator Payne, Senator Mason and Senator Scullion. They are Liberal members who joined with all the Labor members on that committee to propose a significant number of changes--some 51 in all. If the government ignores them--those three Liberal senators--they have no option but to vote for their own recommendations in the parliament. If crossing the floor is a problem for them they should abstain. Having heard the evidence and having deliberated on these issues and come to a conclusion, they are obliged to see that conclusion carried out.
The government, of course, approaches these sorts of solutions and those who advocate them with disdain. We know it has restricted debate in this chamber. Some 44 out of Labor's 60 members of parliament are unable to speak in this debate because the government will gag them. It will introduce the guillotine. Today it gagged its own members in its own party room. It would not allow debate in the Liberal party room today on this legislation. In other words, government members are expected to vote on this bill tonight when they have not even agreed on a position, because the Prime Minister gagged his own party room. What does this say to the senators who have actually considered the detail of this legislation and come to conclusions about it and the need for change, when their views are not even able to be heard and debated in the party room because the Prime Minister does not want it?
The reasons we need tough laws to fight the terrorists are obvious post September 11 and post Bali. Those events in 2001 and 2002 were graphically etched in the minds of Australians. They changed the security, the concerns and the issues that Australians have. They changed them forever. But, having said that, this government needs to be honest with the Australian people as to why we need new legislation to fight terrorism--the new legislation before the House. If in fact, as I will argue in this debate, we got the balance right essentially because of Labor amendments in 2002 and 2003, why do we need new laws in 2005? I will tell you why: because of Prime Minister John Howard's decision to take us to war with Iraq--a decision which was based on a lie, a decision which has made this country more unsafe and made us a bigger target. Do not just take my word for it. Mick Keelty, the chief commissioner of the Australian police, said so, only to be attacked by the Prime Minister for telling the truth. Forty-three former Defence chiefs and diplomats, eminent people in this country, also said so. They said that Australia was taken to war in Iraq on the basis of false assumptions and deceptions.
So we made the decision to go to war in 2004 based on a lie. We, as a result, made ourselves a bigger target for terrorism. The Prime Minister of this country wants us to judge his prime ministership through the prism of trust. He told us to trust him at the last election, a man who has shown on so many occasions that he cannot be trusted--the person who said we would never, ever have a GST; the person who argued that parents had thrown their kids overboard; the person who said Medicare would be retained in its entirety, who said we would not have $100,000 university degrees, who said he would reduce foreign debt and who said the reason for invading Iraq was to deprive it of its weapons of mass destruction that have never been shown to exist; and the person who, during the last election, never mentioned the extreme industrial relations legislation he is now seeking to ram through the parliament. His determination to ram through this legislation that we are debating tonight without proper scrutiny and in attempted secrecy is a further abuse of trust of the Australian people.
I say again: we do need tough antiterror laws, but we must also protect the nation's civil liberties. They are not mutually exclusive. The balance can be struck. On many occasions in this House, Labor has argued for the balance and to achieve that balance, and Labor has consistently put forward proposals that do achieve that balance. It can be done if there is a preparedness to consult and to consider. On many occasions, Labor has proposed constructive solutions to strike this balance. A series of terrorism bills were introduced into this chamber in March 2002. The basis for them being introduced set the pattern. They were introduced at 8 pm on 12 March 2002--a hundred pages of legislation; a hundred pages of explanatory memorandum--and were debated the very next day. Under the original proposed bill, the government were seeking ASIO warrants to be provided for indefinite detention and questioning of persons, including children, who have information on terrorist attacks. They proposed detention incommunicado. They proposed no right to decline to give information or produce a document, no penalty for officers who do not administer the bill correctly and no parliamentary oversight. That legislation, of course, in 2002 had serious flaws. Labor was able to make that legislation better, ensuring the terrorists--but only the terrorists--were targeted.
We also had the ASIO bills sent off for further parliamentary scrutiny. Ultimately even the Prime Minister, who had proposed the original draconian legislation, was forced to admit that we got the balance right. He said so at the Press Club on 11 September 2002 when he said:
We have, of necessity, tightened our security laws. I believe through the great parliamentary processes that this country has I believe that we have got the balance right.
Well, why doesn't he use that 'great parliamentary process' again in relation to this legislation? Why doesn't he draw not just on what the Labor Party is saying but on what a bipartisan position of the Senate committee has recommended? The truth of it is that back then we stopped the Prime Minister from introducing the worst excesses which he sought to introduce, but he still keeps at it. That is why we are debating this legislation.
Then, of course, the Bali bombings occurred on 12 October 2002. The government responded, but again it could not get the balance right then. That was the debate about proscription, Madam Deputy Speaker--you would remember it. As the then Leader of the Opposition, I said that we would support any measure for tough and decisive action to stamp out terrorism. I said we wanted Australia to be tough on terrorists but only on terrorists. The government then wanted the power for the Attorney-General to proscribe organisations, but we said it was too much power in the hands of the executive. It needed judicial oversight. We said that we were prepared to accept the United Nations proscription formula. We even proposed and introduced a private member's bill to proscribe Hezbollah. Why? Because of the intelligence briefing we and the government had in relation to that organisation. Again, the point I am making is that it was us who took the initiatives to deal with terrorism but not to strip away people's civil liberties, as this legislation does.
After the proscription debate the two Senate committees reported on the ASIO bills. They recommended amendments that we, Labor, were prepared to adopt--but not the Prime Minister. He insisted on his own bill. He then ignored again the parliamentary wishes. He threatened the Labor Party that we would be to blame if there was a terrorist attack. Labor, to our great credit, at the end of 2002 stared him down. We told him that he could have had an agreed bill before Christmas. We had that late night sitting--members in this House would remember it. Instead, the Prime Minister walked away from that bipartisan opportunity, only to have the bill brought back into the parliament in June 2003, some six months later, when it passed in a form almost identical to that which we had proposed.
What we wanted then--because it was not in the original bill--was the choice of legal representation, the protection of children under the age of 18 years, a three-year sunset clause to ensure further parliamentary scrutiny and a questioning regime, not a detention regime. We got all of those things. We got them because they were right to get. But I said then that not only will Labor combat terrorism but Labor will protect the liberties that terrorists want to destroy. And that is what the balance has to always be about with this type of legislation. The parliament did get the balance right in 2003, but only because of Labor's insistence and only because the government did not control the Senate.
It is also interesting to note that, despite the government insisting on the need for these new laws that we are debating tonight post the London bombings, and despite the agreed position of a fortnight ago to change 'the' terrorist act to 'a' terrorist act, the recent arrests of 18 suspects took place under the legislation finally agreed to on earlier occasions--the legislation that I have just talked about. So getting the balance right, protecting civil liberties, does not compromise the work of our law enforcers.
The history of this bill is an outrageous abuse of the parliament and of the premiers. It is another attempt by the Prime Minister to get his way now that he has control of the Senate. He and the Attorney-General are not attempting to get an agreement on what is needed--still no coastguard and still insufficient airline and port security--but, ever pervasively, attempting to strip away civil liberties; they are at it again. The current Attorney-General, like his predecessor, Daryl Williams, has failed his charter. He has forgotten that as the Commonwealth's first law officer he has a responsibility to the Australian people and their civil liberties as well as to the government. Daryl Williams lost his position as Attorney-General soon after the 2002-03 compromise. His hardline defence of the Prime Minister's indefensible position was not rewarded. Howard dumped him. The current Attorney-General, Mr Ruddock, should take note. Stick up, Attorney, for what is right. You wear that Amnesty badge--show you believe in Amnesty's principles. Adopt Labor's amendments. Listen to the Senate committee. Listen to the members of your own party, do not gag them, and dump the sedition provisions.
The Prime Minister abused the trust of the premiers at the Council of Australian Governments. The proposal that he took to them did not even include the sedition provisions which now the Senate members recommend should be dumped. The Prime Minister sought secrecy on the legislation, but it was exposed by the courageous act of Jon Stanhope in posting the secret bill on his web site.
Mr CREAN--The Parliamentary Secretary to the Minister for Defence, at the table, said it is outrageous.
Ms Gambaro--I said, 'Courageous.'
Mr CREAN--What is outrageous, I ask the parliament, about taking the Australian people into your trust and showing them legislation that you intend introducing into the parliament, not through the stealth of night? The Prime Minister talks about trust. Have trust in the Australian people. Jon Stanhope did, and he is to be commended for that courageous stance. He demonstrated a preparedness to properly use the trust mandated to him. He took the people into his confidence. The Prime Minister simply abuses that trust. Honest John indeed.
The premiers forced a rethink of the legislation. Labor again promoted initiatives to get the balance right. Our second reading amendment does that again. But that second reading amendment is bolstered and reinforced by the findings of the Senate committee--bipartisan recommendations from all government and Labor members. The government members have joined Labor and recommended that the archaic provisions relating to sedition be removed altogether. They have then gone on to say that if they are not removed then the rights of free speech and peaceful protest should be protected. Just have a look at what that report says. In quoting the definition of seditious intention, it includes:
... nonviolent civil disobedience as exemplified by religious and political leaders such as Mohandas Gandhi, Rev Dr Martin Luther King Jr, Archbishop Desmond Tutu, and a great many other prophets of history.
What a great legacy for this country to be passing laws that would have prevented the sorts of actions and peaceful protests that those people led that changed the world, that changed people's lives for the better. This government wants to close them down. The only evidence supporting the sedition provisions came from the Attorney-General's own department and the police. All other evidence presented to the committee opposed the provisions.
The Senate committee has also recommended a sunset provision, just like Labor has, of five years, not 10. That is the sort of thing the Australian people want. That is the sort of balance that can be struck--tough on terrorism but protecting the civil liberties of the Australian people. That is why the Labor amendments should be supported and why the government, rather than gag its own members, should do the right thing--which it has always been forced to do in the past--and support that which Labor has put forward.
Second Reading Speech
29 November 2005
Mr ANDREN (Calare) (6.40 p.m.)-The whole process of bringing the Anti-Terrorism Bill (No. 2) 2005 into the House is an example of bad law making. The bill allows terrorism to violate our hard-won and fragile freedoms and allows covert government action at the expense of open and independent review of the truth. The bill seriously invades privacy through control orders, preventative detention, surveillance, warrant-free information demands and compulsory reporting of all financial transactions-notwithstanding the recommendations of the Senate Legal and Constitutional Legislation Committee, which I have had about as much time as everybody else, about an hour, to have any sort of a look at.
The bill as it stands-and that is the important thing; we are debating it as it stands-undermines the right to liberty and the rule of law. It abandons notions of justice and procedural fairness that are so essential to any open and free society. It subverts the Australian Constitution's most fundamental purpose of ensuring separation of powers. It hides government actions relating to human rights from the public gaze and buries accountability. This is one of two significant human rights bills now before the parliament, IR being the other, and the contempt the government has shown for due parliamentary process and good law making astounds me-I wrote in my notes 'astounds me' but perhaps I am not that surprised.
Why were these laws so critical that they were going to be rammed through the parliament within a day? Only Jon Stanhope's placing of the bill on the net triggered any semblance of proper process. Why did debate start without the benefit of a completed Bills Digest, which was not available until a week after the last sitting-something that was hardly surprising given the complexity of the legislation? Why did members make contributions to the debate several weeks ago when they had not considered the findings of the rushed Senate inquiry first? These findings were only tabled this afternoon, and incidentally they pick up on some but not all of the concerns I outline here. Why was this legislation drafted before the completion of the legislative review of our existing antiterror laws in the new year?
It is a disgrace that those who would question this legislation should be labelled as less than solid on national security, given the process by which this has been delivered to the people's house. No parliamentary representative should surrender scrutiny of and debate on any legislation, particularly this legislation, to a blind trust in executive government-especially a government that has already politicised and abused the operation of the armed forces, the police and ASIO in the tragedy of SIEVX, the shame of Tampa and the obscene 'children overboard' claims. This is a government that already holds innocent people in detention centres for the crime of seeking safety and refuge from other repressive regimes and indeed deprives the liberty of others for years at a time due to departmental mistakes. It is a government that deports a non-violent peace activist as a threat to national security and goes to war on the basis of spurious and false intelligence.
Might I remind the House of the thorough scrutiny of and debate on similar legislation in the British House of Commons. Britain is a country well versed in terrorism and its consequences, yet it is prepared to have lengthy debate and scrutiny and see all sides of that parliament expressing their opinion and their vote with absolute freedom. Of course we need laws to protect Australia from terrorism, and Australia already has some 27 pieces of antiterrorism legislation, with existing ASIO legislation already deemed to be amongst the most comprehensive in the world. There has been no demonstrated need or any thoughtful argument put forward to say why these provisions in this bill are needed or why existing laws are insufficient, save for unsubstantiated assertions by the Attorney-General. Let me quote from Hugh White in the Sydney Morning Herald on 10 November:
If we keep seeing each new attack-and each claim of a planned attack-as a new threat requiring a new response, we will never regain our equilibrium in the face of a threat which-for the time being, at least-we must live with.
These sorts of laws would not have stopped the UK bombings, with the perpetrators well under the radar of security and police forces, and the recent operation and arrests in Australia were carried out under existing laws. How do these laws contribute to people's safety and protection of their freedoms-freedoms we have fought legitimate wars to defend? I say 'legitimate' because I am firmly convinced the terror threat we and our Anglo allies face is largely due to our involvement in an illegitimate war in Iraq.
I well appreciate the need for laws to protect Australia from terrorist attack but, without checks and balances under the law and without express referral to human rights, these laws contain provisions that in other times and places have allowed very grave transgressions indeed. This bill criminalises conduct and expressions that, while perhaps being distasteful or unacceptable, need not be directed at anyone in particular or contain any intention to actually cause violence. Under schedule 1 of the bill, an organisation that 'indirectly counsels', 'provides instruction on' or 'directly praises the doing of a terrorist act' is advocating the doing of an act. Such an organisation or group may be proscribed as a terrorist organisation, whether or not an act has occurred or will occur. This is even if the organisation has no other involvement in terrorism, if the person who did the praising did not intend to cause any terrorism and if there is no connection to any actual offence.
Closely related to this sweeping terrorism offence are the obnoxious provisions of schedule 7, under the appropriately archaic heading of 'Treason and sedition'. You can be imprisoned for seven years if you urge another person to assist by any means whatever an organisation or country either at war or engaged in hostilities with the Commonwealth, whether war has been declared or not. While this does not include assistance of a humanitarian nature, the question must be asked: are we also now going to be selective about what constitutes an insurgency or a justified civil war or whether players in it are terrorists or freedom fighters? Do we judge Chechnya by the same values as we did East Timor? The selectivity of some Western nations around such issues is the reason for the resentment leading, at the extremes, to murderous hatred of much Western foreign policy.
The defences for good faith are largely political in nature and do not specifically protect statements made in good faith for academic, artistic, scientific, religious, journalistic or public interest purposes. The most important measures of a truly free society include its tolerance of free speech. Truly free societies should allow opinions to be aired and judged by the court of public opinion. We legislate to restrict free speech at the risk of sliding towards an Orwellian world of newspeak. The more we restrict freedom of speech, the more we run the risk that offensive or objectionable opinion will be driven underground where it cannot be aired and answered and in fact may be magnified and radicalised. I will support any moves to excise sedition provisions from this bill.
Schedule 4 allows a federal Family Court or federal Magistrates Court to authorise the police to restrict a person's freedom in virtually any way possible based on the balance of probabilities that it would substantially 'assist in preventing a terrorist attack' or that 'the person has provided training to, or received training from, a listed terrorist organisation'. The organisation need not have been illegal at the time and the training need not be for violent or illegal purposes, so a court may authorise where the person must be and when, to whom the person may speak or with whom the person may associate, or order that person to wear a tracking device for up to a year and, conceivably, on a rolling basis for up to 10 years-all of this without charge and without judicial oversight. This is done on the advice of the police without the need for specific evidence, without a full and fair trial or finding of guilt of any crime. There is no guarantee that the statement of facts provided when seeking consent from the Attorney-General will include any intelligence on which the order may be based or that any such intelligence would be passed on to the court, let alone be tested as evidence. While the subject may apply to the court to revoke the order at any time after the order has been served, the fact that these orders do not have to relate directly to an intent or act of a particular person renders this so- called judicial review somewhat spurious.
Here we have punitive control orders that may include conditions as onerous as those applied to people who have been tried or convicted of a crime, based on speculation of future conduct or based on actions that may have been legal at the time. Not only this but these orders are brought because there is not the evidence to allow the charging of a criminal offence, nor is there any requirement that charges would follow. Where is justice and due process in this? In my research I have not found a shred of cogent argument about how these provisions could 'substantially assist in preventing a terrorist attack', and this leaves me deeply concerned about these provisions.
Under preventative detention orders we again have a judge or member of the AAT acting in their 'personal capacity' authorising a person as young as 16 to be imprisoned for 48 hours and then for up to two weeks under state law without being charged-let alone being found guilty-of any crime. This imprisonment may be in a jail or remand centre with people convicted of a crime, presumably under maximum security and/or in solitary confinement. The grounds for authorising this preventative detention order are serious. There must be belief the person 'will engage in' or 'has done an act in preparation for ... a terrorist act' or 'possesses a thing ... connected with the preparation for, or the engagement of a person in, a terrorist act'. That act must be 'imminent' and expected to occur within 14 days. Alternatively the detention may be necessary to preserve evidence of 'a terrorist act [that] has occurred in the last 28 days'.
While the facts and other grounds for detention must be considered by the issuing authority, a judge looking at such an application has absolutely no way of testing the accuracy of those grounds, and any decision made to detain someone will be made on probabilities and possibilities. It is the basis of our legal system to be protected from arbitrary imprisonment by either the judiciary or the executive-
Interjection Mr Katter - Habeas corpus.
Continue Mr ANDREN - but it pushes the bounds purpose, as the member for Kennedy so rightly points out. Detention is carried out in secret. There is no true answerability for those unjustly detained. The person detained or their lawyer is only given information about the fact of the preventative detention order; they are not told the reasons that they are in custody-in fact, they are not even aware of the initial detention order until they have been picked up. There is not even a requirement for charges to follow such detention.
We have the absurd idea that the person can contact one family member or an employer or business partner for the sole purpose of telling them they are safe but not contactable for the time being. However, if aged between 16 and 18 or 'incapable of managing their affairs', they may contact both parents and may be visited by another person for a minimum of two hours a day. They may contact a lawyer. But if a prohibited contact order applies to any of these people they may not contact them. However, they are not told if a prohibited contact order exists.
If any of these people discloses the detention order to another: five years jail. If a third person, such as a journalist, discloses the order: five years jail. They or their representative may make representations to overseeing senior AFP members but only about the exercise of that power and their actual treatment, not about the validity of the detention in the first place. They may complain to the Commonwealth Ombudsman about the order itself or of treatment by the AFP, but after the whole thing is over. Of course, if a court cannot access the intelligence behind the orders and detention, they are hamstrung in determining whether, on the balance of probabilities, such an action has substantially assisted in the policing work.
Further, the Administrative Decisions (Judicial Review) Act is explicitly excluded, which means the Attorney-General is not answerable for giving permission for this whole process to begin, and it removes a person's entitlement to receive any statement of the reasons for the decision to detain them. Without the protection of what is accepted to be full judicial oversight, or the ability to test accusations in a fair and independent court of law before punishment is meted out, these laws have serious potential to dismantle our only protection from arbitrary punishment or detention-from abuse of human rights. The sad and, I acknowledge, understandable fact is that all this seems to be acceptable to the majority of a frightened electorate.
Despite all this there is no mention of this parliament reviewing any provisions in the bill. The bill records that COAG-that de facto governmental process which has largely usurped parliamentary scrutiny-has agreed to review some of the provisions after five years. COAG then prepares a report and, if a copy of the report is given to the Attorney-General, it must be tabled within 15 sitting days. There is no mention in the bill of any review of the other amendments, including the unacceptable schedule 6, Treason and sedition. There should be a full review of this bill by this parliament three years after it becomes law, as is the case with the ASIO legislation.
Further, the so-called sunset provisions do not repeal this legislation. They determine that control, preventative detention or prohibited contact orders cease to be in force 10 years after those provisions become law and that any of those orders cannot be applied for or made after that time. There is no sunset clause relating to schedule 6, Treason and sedition. This means in 10 years those sleeping powers will remain on statute where any future government can simply repeal the three sunset provisions to bring them back into operation. There should at least be an automatic repealing of the bill, properly amended, under a true sunset clause in five years so any continuation of these provisions are first evaluated, debated and refined.
The war on terror is a catch-all phrase to rebadge a determination free countries have had, since their freedom was established or won, to root out criminals who would seek to cause death, injury or mayhem. We should never allow it to become an excuse for an attack on the individual's right to personal liberty in peacetime. Without an express referral to the protection of individual rights under international law we risk dismantling our framework of justice that protects us from the arbitrary actions of the executive. As many have asked, do we ramp up these laws time and time again, thus eroding the very freedoms we hold up as essential virtues of our way of life?
In the last minute or so I want to comment on the recommendations of the Senate Legal and Constitutional Legislation Committee-and I pay tribute to Senator Payne and her colleagues for the work they have done in a very, very short time with something like 300 submissions. The very fact that there are 52 suggested amendments to this bill suggests to me the legislation has been sorely ill prepared and demands substantial amendment as this document illustrates. The recommendations surround detention orders, the reporting process, the review process, the five-year sunset recommendation and the sedition laws. I am pleased to see a more substantial role recommended for HREOC and the Ombudsman. I note recommendation 10:
The committee recommends that the Bill be amended to require the Minister-in consultation with HREOC, the Ombudsman and the Inspector-General for Intelligence and Security-to develop a Protocol governing the minimum conditions of detention and standards of treatment applicable to any person who is the subject of a preventative detention order.
The recommendations are on the right track. They certainly need to be examined far more closely than we in this place have had an opportunity to do so. The fact that this legislation was earmarked for a one-day debate and to be rammed through parliament in no time at all is an absolute indictment of the government. If that was going to be its course of action, it could then have been fairly accused of utilising that urgency to ramp up concern in the community to an unwarranted degree.
I leave it on this note: why do we now have this process that has extended it? I would suggest only because the Chief Minister of the Australian Capital Territory jumped rank on his colleagues in COAG and put the draft bill on the web for all to see. And, after all, if all of us are to be impacted by this legislation, it was incumbent on any government to make sure that the public knew exactly what those draft provisions were, not to pretend that it was already an outdated version and not to pay any attention to it and that Mr Stanhope had somehow been duped. I know he has been ignored ever since he did it by the Prime Minister. Why do we not have the proper scrutiny? Why do we not have a proper debate and a proper inquiry into legislation that is probably the most monumental, perhaps since wartime, to hit this parliament? The government should, as a basic move, look seriously at these 52 recommendations. I cannot support the bill at this point until such attention is paid to those recommendations and the concerns I have outlined.