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Ideas to prevent a repeat of the Whitlam dismissal in the proposed sedition laws: lock him up!

Decent Liberals' terror fears

Today, Thursday 10 November, was the last day before Parliament rises for two entire weeks.

Image: Thanks to The Australian and Bill Leak cartoons

It should have been the day that Parliament would vote on The Anti-Terrorism Bill (No. 2) 2005.

It should have cleared the floor of Parliament in preparation for Senate consideration and its Inquiry, but voting didn't happen.

Margo Kingston writes from the Canberra Press Gallery:

"...the terror debate suddenly got interesting in the Parliamentary Chamber where the government always gets its way, and I reckon there's now room for MPs across the parties in the Reps and the Senate to force significant improvements on a recalcitrant PM on behalf of the Australian citizens they represent."

"On Tuesday morning, the Manager of Government Business in the House of Reps, Tony Abbott, told his Labor counterpart Julia Gillard that debate on the terror bills would begin today at 9am with the guillotine set to fall before Question Time at 2pm, forcing a vote."

"But slippage occurred. The IR bill was not voted on as planned last night, but late this morning. Debate on the terror bills had just started really when Question Time came and went and then the House of Reps rose until Monday November 28."

Below are two of the most interesting speeches in Parliament this week, and they're both from the government bench - from two Liberal party members, Petro Georgiou MP, and Steven Ciobo MP.

Petro Georgiou urges caution


10 November 2005

Mr GEORGIOU (Kooyong) (12.47 pm) The Anti-Terrorism Bill (No. 2) 2005 contains severe and exceptional measures. In particular there are measures that establish regimes of control and preventative detention orders. These measures will allow people to be deprived of their liberty, although they have not been arrested for or convicted of any crime. These measures bring to the fore the very real tension between parliament's duty to protect the community from the threat of terrorism and its obligation to ensure that other fundamental rights such as due process, liberty and freedom of speech are not unduly infringed upon or curtailed.

Let me set out my perspective very clearly. The risk of a terrorist attack in Australia is real. We are not immune from the possibility of attacks such as those that have killed thousands of people, including Australians, on the soils of our close friends and allies in recent weeks and years. Given the scale of the harm that the terrorists have unleashed and evidently seek to cause and their organisational and material resources, I consider that the threat is sufficiently grave to warrant exceptional measures. We have to give our police and intelligence agencies sufficient powers to protect us, but we must also do so without betraying the very values we are defending.

The challenge to the parliament of getting the balance right is a formidable one. Concern has been expressed that the pressure to legislate new powers would not allow parliament sufficient time for the rigorous examination required to ensure that the proposed measures are necessary and effective and contain appropriate safeguards. I believe that, under the arrangements now made for the consideration of this bill--particularly with the scrutiny by the Senate Legal and Constitutional Legislation Committee--parliament does have the capacity to look at the measures closely and to take into account the view of the many groups and individuals who wish to participate in the debate on this critical subject.

I now turn to the substance of the bill. It is important to note that significant protections have been incorporated in a number of areas, particularly with respect to the most sweeping provisions--those establishing control and preventative detention orders. One can see this very clearly by comparing the draft bill that was published on the internet. Let me give several examples. First, in the draft bill, a court was able to make a control order for 12 months after a hearing, at which only the police were present to offer evidence. The police would then serve the order telling the person what they were now obliged to do or were prohibited from doing but without any explanation of why. The draft gave people subject to the controls the right to apply to a court to revoke the order, but they had to give notice to the police of the grounds for revocation without the police being obliged to state the grounds on which the order was based.

The procedure is very different under The Anti-Terrorism Bill (No. 2) 2005, which has been introduced to this parliament. Now a court can impose only an interim order at a hearing where only the police present their case. If the court makes an interim order, it has to schedule a full hearing to give the individuals affected an opportunity to contest the evidence before deciding whether to confirm or to revoke the order. The police are now required to give people on whom an order is imposed a summary of the grounds on which the order was made. The system of preventative detention orders also contains improved safeguards. In the draft bill, once an initial preventative order was made there was no independent scrutiny until it was due to expire and the detainee had no entitlements to make representation about their detention. They were not entitled to be told anything about why an order was imposed on them.

Under the bill that has been introduced, a detained person must be given a summary of the grounds on which the order is made and, further, the Federal Police Commissioner must nominate a senior Federal Police member who was not involved in the making of the application for the order, to oversee the exercise of the powers under the order. The nominated officer's responsibilities include monitoring whether the grounds for detention have ceased, in which case he must apply for the order to be revoked so that the person can be released. As well, the bill provides that the detained person or their lawyer is entitled to make representations about the detention order to the nominated police officer.

I believe the government is to be commended for these positive responses to suggestions made from a number of quarters for additional safeguards. They have been achieved without in any way weakening the effectiveness of the measures. I anticipate that the detailed deliberation of this chamber, the Senate and the legal and constitutional committee will indicate areas where adjustments may be made that will enhance the integrity of the legislation.

Time constraints require me to focus my remarks on only a few areas. I focus on several of these areas without wishing to suggest that they are more important than other issues which have been or will be raised by members of parliament and members of the public.

First I will focus on disclosure offences. The bill provides for a number of so-called disclosure offences relating to preventative detention orders. These offences are extremely serious. Each of them carries a penalty of five years imprisonment. The intention behind these disclosure offences is understandable. It is to deter people from alerting others who are involved in terrorist activities. But, when you examine the proposed offences closely and consider how they might work in practice, issues arise which do demand careful attention.

For example, take the situation of a female minor aged between 16 and 18 who is detained. In accordance with her rights under this bill, she can phone her parents and utter the words, "Hello, Mum. I'm safe, but I can't come home for a few days. I have been detained under a detention order." She can speak to her mother, and if her father is not home she cannot communicate that fact to her father--something that she is entitled to do. But here is the problem. When the husband does return, his wife, under this law as framed at present, cannot tell him that his daughter has been detained. If she does tell him that the daughter has been detained, she is breaking this new law and is liable for five years in prison. Moreover, if a daughter who has been detained is over 18, she cannot even tell her mother that she is held under a detention order, under pain of five years jail. So we have potentially five years jail for both mother and 18-year-old daughter. And adult detainees are not entitled to tell people that they have been detained. It is a crime for them to disclose that they have been detained.

As far as I am aware, the UK law permitting extended detention in relation to terrorism offences does not have disclosure offences and imposes fewer constraints on communication by detained people than are proposed in the present bill. I am pleased that the Senate Legal and Constitutional Legislation Committee has the capacity to obtain evidence to assist it in coming to a view about what, if any, restrictions on communication might be necessary, effective and reasonable.

Regarding sedition, as the Attorney-General indicated in his second reading speech, these amendments were intended to modernise the language and not to comprise a wholesale revision of the sedition laws. But the fact is that the revival of a law that was either unknown or generally considered to be a dead letter has generated a great deal of concern. A number of legal commentators have drawn attention to potential restrictions on freedom of expression and communication which are not, I believe, intended and which, were they to eventuate, would be utterly unacceptable. For example, in the opinion of barristers Bret Walker--and I have a great deal of regard for Mr Walker-- and Peter Roney:

The good faith provisions do not, in terms--

which I understand is a legal term--

allow any publication in good faith to be excused. It would have been a simple drafting exercise had it been sought to excuse, as the Attorney General suggests this Bill does, that the offences were not designed to prevent journalists from reporting in good faith. It seems to us that the Bill does not do anything to provide that assurance.

Walker and Roney conclude that there is considerable uncertainty about the implications for investigative journalism. They say:

That uncertainty indicates a difficult and undesirable aspect of this latest proposed manifestation of anti-sedition laws--laws which have a long history of difficulty, and opposition.

It is my view that the sedition provisions in this bill are problematic and they do require serious review by the Senate Legal and Constitutional Legislation Committee. That committee will have the benefit of submissions from legal and other experts. I understand that there will be significant submissions made to that committee when it reviews these bills. The advice of the committee to the parliament will be keenly awaited, and I welcome the Attorney-General's assurance that he and his department will review the sedition offences and that he may refer some matters to the Security Legislation Review Committee.

Moving on from the issue of sedition, schedule 6 of the bill proposes to give the Australian Federal Police far-reaching new powers designed to make it easier for the AFP to obtain, search and seize information and documentation. The documents it covers include the details of financial accounts and transactions, travel accounts, the transfer of assets, telephone account information about calls made and received and the length of the calls, and other information which the Australian Federal Police consider on reasonable grounds will assist in the investigation of serious terrorism offences.

The Anti-Terrorism Bill (No. 2) 2005 also enables the Australian Federal Police far-reaching new powers to obtain, search and seize materials that do not relate to offences involving terrorism. I have not formed a view about the desirability of the proposed new powers in relation to non-terrorism offences, but I have to say that I am not clear as to why they have been included in a bill on terrorism.

I now turn to the issue of monitoring. It was agreed by COAG that the operation of the legislation would include safeguards against abuse through parliamentary review. Clause 4 of the bill notes that COAG agreed to review certain parts of the new legislation and certain state laws after five years. It provides that, if a copy of the review is given to the Attorney-General, the Attorney-General must table it in parliament. I do not believe that parliament should refrain from examining the operations of this legislation for five years.

The bill also notes that the Attorney-General must provide an annual report to the parliament about the operation of the legislation relating to control and preventative detention orders. I believe that this reporting is important, but the information he provides may not be sufficient to allow the parliament to effectively assess whether the exceptional measures it has passed are working well enough to protect against terrorism and whether they are being applied fairly.

Informed parliamentary scrutiny is essential in view of the potential for the law to be applied to people who are completely innocent of any involvement in terrorism, and the concern is that it may impact disproportionately on some groups or infringe unduly on rights such as freedom of expression. The impacts of the provisions of the bill need to be monitored.

Muslim and Arab Australians have expressed concern that they will be unfairly targeted. Anxiety has also been voiced on behalf of officials who will have a major responsibility for implementing the legislation. Several weeks ago, Mark Burgess, the chief executive of the Police Federation of Australia, spoke of police wanting legal protection against being sued for unlawful discrimination with respect to the proposed new stop-and-search powers. Mr Burgess said:

... it is inevitable that there will be unintended consequences of this legislation, and we just want to make sure there is some protection for police officers.

It is vital that we address the concerns of all groups seriously, as a matter of both principle and pragmatism. Parliament needs to ensure that the intelligence and law enforcement agencies have the necessary powers and protections to operate effectively. Equally, it must ensure that the application of the law does not lead to the alienation of community groups whose active participation is essential for the success of intelligence collection and law enforcement. Individuals who believe they have been treated unfairly will be able to complain to the courts and to institutions like that of the ombudsman.

But the fact is that not everyone who is aggrieved makes a complaint. The decisions of the court and the ombudsman can provide only a small part of the picture. The government will receive ad hoc feedback from the Muslim community reference group which has been set up, but its members do not have the responsibility or the resources to inquire comprehensively into situations. It is important that parliament identifies a credible mechanism for continuously reviewing the operations of this legislation.

There are a number of options. One is to assign the task of review to an established or specially created parliamentary committee. The Australian Federal Police Association has expressed support for an ongoing, independent review of the counter-terrorism laws and suggests that this could be undertaken by a joint standing committee overseeing the activities of the AFP.

Another is the model that the UK has adopted. Its counter-terrorism legislation has been active for some 20 years and has provided for the appointment of an independent reviewer--currently, Lord Carlile QC. Lord Carlile is able to conduct a broad assessment of the operation of the counter-terrorism laws, whether they are necessary and effective and whether they are being used fairly. In preparing his reports, Lord Carlile obtains information from official and other sources--the people who use the legislation and those who are affected by it--and has access to sensitive material.

Another approach is to have a periodic review--and for this there is an Australian model which is pertinent. The Attorney-General is required by the Security Legislation Amendment (Terrorism) Act of 2002 to establish an independent review of the operation of counter-terrorism laws that have been in place since mid 2002. As the act specifies, he has appointed a review committee. It is headed by a retired judge, and its members include the Inspector-General of Intelligence, the Human Rights Commissioner and lawyers nominated by the Law Council of Australia. The review committee must allow for public submissions and hearings, and it will table its report in 2006. This model is excellent. However, it is a one-off review and, once the committee completes its task, it will disband.

The reality of the terrorist threat demands that we proceed expeditiously to put in place measures that are essential for the protection and safety of the community. The urgency of the situation requires us to be particularly vigilant about the legislation before us, to ensure that we enact no more than what is strictly required by the exigencies of the situation. We need to ensure that exceptional powers are balanced by effective safeguards. We need to ensure that we will be well informed about how those powers are used, and that we can promptly remedy any defects or unintended consequences that become apparent.

In the course of its development, the bill has been substantially improved by the input of the states and territories, members of the backbench, its committees and the party room. I believe that we now have an opportunity for all members of the parliament and individuals and groups outside of it to contribute their knowledge, perspective and experience to the legislation. Inevitably, there will be differences of opinion about what is necessary, fair and proportionate. The fact is that, despite the spread of views, they all need to be heard and considered. We must strive to achieve a deliberative process that continues the improvement of the bill--honing it--and that, as far as possible, ensures both effectiveness and respect for fundamental rights. I look forward to participating in the debate.

Steve Ciobo wants a Bill of Rights


8 November 2005

Mr CIOBO (Moncrieff) (5.11 p.m.)--In my first speech in this place on 13 February 2002, I posed the question "What is my purpose?" In answering that question, I sought to outline a map that could guide my deliberations in my role as a member of the House of Representatives. In my first speech I touched on my fundamental beliefs as a Liberal Party member. These beliefs remain true and steadfast for me still today. Those beliefs were:

... in the sovereignty of the individual and their empowerment over the collective; in the responsibility every one of us has in a civil society; in the promotion of the family as the bedrock of any sustainable society; and in the limited role for the state in wealth redistribution and market intervention.

I continued:

Since the nefarious attack on all liberal democracies on September 11, I am steeled in my resolve to defend our freedoms. I am strengthened in my view that the Liberal Party remains in this country the greatest mechanism for resisting the incursion of the collective over the individual.

Today, nearly four years later, our nation and others continue to repel vicious and ruthless attempts to intimidate Western democracies and to curb the freedoms our people enjoy. Indeed, this very week, the executive arm of government is introducing a suite of new powers that will assist in enabling our front-line agencies, the men and women of the various Australian police forces, security agencies and other associated bodies, to fight against those who threaten our very way of life.

These enhanced powers are very necessary. The new threat paradigm the people of Australia and other peoples elsewhere must contend with is not predicated on our traditional view of nation state opposed to nation state. Rather, it is nation state against organised, but loose, collectives that we are preparing ourselves to fight. The men and women directly charged with maintaining Australia's security need to have wide ranging powers in order to adequately perform their task. In the absence of good intelligence, terrorists are free to enjoy the same freedoms we all do in the West. In the absence of scrutiny, terrorists can plot and make preparations to murder and mutilate as many as their wicked plans aspire to. It is truly only the ability to gather intelligence and closely scrutinise potential terrorists among us that can provide reassurance to all Australians.

The concern, of course, is that in seeking to provide the necessary tools to our front line to adequately protect Australians and provide the security all Australians rightly demand, we must somehow not unduly erode the very freedoms we are fighting to maintain. Essentially, since the Magna Carta in 1215, Western democracies have been set apart from others through our pursuit and steadfast defence of liberty and human rights. The balance that must be achieved is between the desire for security and the individual incursions required to deliver it, on the one hand, and the need to maintain our gaze on individual freedoms and processes which continue to uphold the individual as the supreme focus in a liberal democracy, on the other. I can think of no better enunciation of this principle than the widely quoted American Declaration of Independence:

We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.

In Australia, sharing as we do a common heritage with the United States, we enjoy constitutional and common law rights and responsibilities passed down through the generations from Britain. Our forefathers crafted an excellent constitution that has stood the test of time in better shape than most. Developed on a blend of the US and UK systems of government, the Australian Constitution truly embodies the best forms of government and accountability that serve all Australians.

This parliament is guided by section 51 of the Constitution in the development and implementation of laws. Laws that fall outside of the Commonwealth's jurisdictional heads of power are unconstitutional and without effect, as determined by the High Court of Australia. This is necessary as a check balance on the powers of the executive.

Unlike the positive list of responsibilities for the Commonwealth government outlined in section 51 of the Constitution, however, individual rights in Australia are far less clear. The Constitution itself does specify certain individual rights as part of its broader focus on providing limits to executive powers. In the main, however, individual rights are largely outlined through the development of common law precedent and through the mixed bag of statute law providing for rights. This unstructured approach to defining individual rights has served Australia reasonably well also. It does, however, particularly lend itself to individual rights being a product of judicial interpretation.

This characteristic of the development of rights at law within Australia I find troubling. In addition, in light of the new threat paradigm facing Australia and her legislators, I see the potential for increased conflict and uncertainty arising from the legitimate need to curb certain freedoms to uphold the right to security, being tested in courts, at the mercy of judicial interpretation and application of implied constitutional rights and common law precedent. This is a situation that cannot, and should not, continue.

In an environment in which the executive is required to explore the interplay of individual rights against the need to provide collective security, surely there is a role to also explore the reverse. Some Australians are uncomfortable with the executive's stronger pursuit of collective security at the expensive of individual freedom, even in the face of more calculated and malicious terrorist attacks. Other Australians place a higher emphasis on the need for collective security over individual freedom and are not necessarily concerned with a possible erosion of Western democratic principles of individual supremacy. Our personal views will, of course, reflect our respective weighting of these two competing demands. It is my contention that both viewpoints can be suitably comforted through the introduction of a statutory bill of rights in Australia.

This Australian parliament should be the principal tool of the will of the Australian people to legislate the individual-collective balance. A statutory bill of rights, at a time when the executive must tread more heavily in areas of individual rights, will provide the necessary counterbalance of providing and ensuring collectively that the individual remains the focus of a liberal democracy.

Currently, individual rights, because of their common law origin and their limited role and enunciation in the Australian Constitution, are subject to an activist court. A statutory bill of rights would provide greater clarity because it would be formulated by parliamentarians who are accountable to the Australian people. There should be very little scope for the Australian people to have those individual rights, the very keystone of Western liberal democracies, being subject to interpretation and judicial activism by those who are largely unaccountable and unknown--let alone the processes, which many Australians find completely mystifying.

The benefit of a statutory bill of rights will ensure that legislation will operate at the will of the parliament. As the composition of the parliament changes, so too perhaps is there scope for legislation pertaining to the bill of rights act to also change. I would propose that a court would not be able to strike down legislation that may sit in conflict with the bill of rights act. This is a crucial and fundamental keystone that underlies why it should be a statutory bill of rights rather than a bill of rights that perhaps most Australians associate with--that is, the United States Bill of Rights.

A statutory bill of rights will simply sit together with other pieces of legislation for courts to examine and to assess new legislation in comparison with. That legislation that might sit in conflict with a statutory bill of rights would simply have the court issuing, for example, a statement of incompatibility with the bill of rights act. Such a statement of incompatibility would seek to draw the attention of the media, of the opposition as well as of the Australian people to the operation of the new laws. The executive, of course, would then be required to outline the reason why such legislation is necessary or indeed to defend that legislation in the face of a statement of incompatibility by the High Court. A statutory bill of rights is necessary and important.