Friday the 13th of December 2002 was an eventful day in the Australian Parliament.
The ASIO Bill stalled. The light went off for a while during the marathon sitting of The House. And once again, Australia veered near the abyss of a failed democracy.
One thing was different from the way things went more than a year ago.
Before and after what we call "The 2001 Tampa Election", the Howard Governmment passed a raft of legislation with consent of Labor, in our opinion eroding the foundations of democracy through partially disabling the judiciary as a fully and equitably accessible instrument of review in relation to The Migration Act.
This time there were a few clear voices, stopping the further erosion, and also exposing the strategies and attitudes of the Howard camp.
The clearest voice was from Senator Bob Brown, leader of The Greens. Bob Brown and also Labor's Robert Ray delivered two speeches, well worth recording. They are both reproduced below.
When the leader of the Government in the Senate, Senator Hill, said that the Labor Party's amendments - and by imputation the crossbench support for the amendments - would damn the safety of Australians, he reached a new low in the debate.
What it uncovered coming from the Prime Ministers office was the new political correctness which says, 'If you do not agree with the Prime Minister of this country, you are in some way on the side of those who are anti-Australian or who would create terror in this country'.
That is no way to facilitate a debate in a great parliament like this. There is no doubt that this is a very complex and difficult piece of legislation, which demands resolution today. Therefore, it demands that both sides listen to each other and seek the best outcome in this debate that is possible.
We have had the leader saying that he has been horrified by the de facto government that the Labor Party presents itself to be. In fact, what he has been saying is that this parliament does not have a role as a check on the government, or in improving legislation coming from the executive of Prime Minister Howard.
There is this idea that anything the Prime Minister puts forward, in these increasingly tense and dangerous days, cannot be countermanded even by the elected parliament of Australia. The Prime Minister stands aside and above that in his mind. That is a very dangerous mistake in thinking.
This is a collectively represented parliament elected by the people of this country. The office of Prime Minister was elected by his party, not by the people of this country, and it is the parliament which is supreme.
When legislation is brought into the parliament by the executive - by a minister - and the parliament determines that there should be amendments to it, the government should listen. If the point of view of the government and the Prime Minister is that they will not brook improvement through the workings of the Senate and the parliament, it is democracy itself which is being questioned.
The Greens have said that we oppose this draconian legislation. We and the Democrats have nevertheless supported the amendments that the Labor Party has put forward and supported the passage of the legislation so that it can go back to the House of Representatives for consideration.
That is proper process. The Labor Party say they have come up with a tough, compulsory, coercive questioning regime for ASIO to deal with terrorism. Whatever else the government might say, that regime gives ASIO unprecedented powers to take people off the streets and question them in the first instance without a legal representative and without other people knowing where they are, effectively in secret and with their usual rights taken away.
These are not people suspected of terrorism, knowledge of terrorism or potential involvement in terrorism; these are innocents who ASIO suspects may have some information. This is indeed, as Senator Faulkner (ALP Senate leader) has said, a tough, compulsory, coercive questioning regime.
The government say that this legislation is needed; nevertheless, because the Prime Minister wants to appear to be above the parliament in these dangerous days, the government and the Prime Minister will reject it.
They would leave ASIO with nothing rather than accept the Labor 'moderate' proposition, as I heard the leader describe. Be that on Prime Minister Howard's head if the result of this is nothing. It is incumbent on the Prime Minister, if he believes that greater powers must be given to the surveillance agency ASIO - to accept what the negotiations between the Labor Party and the government have produced.
I am talking about bringing this out from the Prime Minister's realm of ownership of democracy in this country and having him accept that this parliament is working in the national interest.
How dare he or his ministers say that the workings of this chamber would damn the safety of Australians! How dare he or his ministers say that about representatives in this place! That is the new political correctness: trying to silence critics and constructive debate. The Prime Minister is now in the dock for that.
I have watched in this chamber for 18 months as the Labor Party has sided with the government on the Tampa incident, on legislation to bring in the Army against peaceful protesters before the Olympics, and on a series of laws which have eaten into traditional civil liberties and political rights in this country. But we are seeing something different here today. The Labor Party has said: We are going to stand for something different. We recognise that there is a difficult decision to make between our political rights and our democracy on the one hand and the threat of terrorism on the other.
The Prime Minister and the government feel that they cannot accept this situation where, for once, the opposition is acting as an opposition. They will not accept it. Well, they are going to have to accept that this is a democracy where the parliament ultimately makes the decision.
If the Prime Minister walks away from that, be it on his head. It is his responsibility if, where he believes there must be strong laws, he opts instead for no laws. That is the Prime Minister's responsibility, and he has to recognise that.
If this legislation fails today - I am talking about the democratic process here - there will be a void of new legislation for months to come. The Prime Minister will be out there, today and tomorrow, saying it is the fault of the Labor Party, the Democrats and the Greens.
But he cannot maintain that. It will be on the Prime Ministers shoulders; and the test is on here. Does he want the stronger laws which the Labor party are now offering to him for ASIO to handle this situation - which, by the way, is a situation much closer to that which the Greens maintain is the better outcome - or will he opt for none at all?
My submission is that the Prime Minister has had a little too long being dictatorial from the executive, because the Labor Party have let him.
Today, they have become an opposition again. The Prime Minister and the government have to understand that. From where I sit, if there is a zero outcome here today, it is not on Mr Crean's head. It is not on the opposition's head.
It is because of an intransigent Prime Minister who has lost sight of the democratic process.
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Senator Ian Campbell (Lib, Western Australia) read into the record what are basically the views of the Attorney-General's office in regard to these matters. He did not actually address the specific clauses or issues under discussion here. He talked in generalities, as did Senator Hill. Rather than getting an analysis of where the differences lie and where the solutions may lie, we simply got polemics.
... You would have to be silly to say that the bill in its current form, whether it is adopted or rejected, has not changed since the original bill. My point was that the government argued for that original bill, with all its faults, with the same passion that they have argued with tonight - except that, on the way through, they have dumped 10 or 12 of those principles with no passion at all.
Those principles do not exist any more. There is no guilt for coming up with such cryptofacist nonsense as appeared in the first bill. That is just a blank in history. That is just thrown overboard.
What of your proposal to strip-search 10-year-old girls? Oh, that doesn't exist anymore. Well move the argument on. The same passion with which they defend some of the more extreme measures in this bill will equally be dropped off at some stage in the future. The fact is that this government has shown that what is an immutable principle one moment can be jettisoned the next.
It is true to say that commitment to civil liberties is not the preserve of any one person or any side in this chamber; it is shared across the chamber. There is no question about that. There might be differences of opinion as to how civil liberties apply and when they should be suspended in specific circumstances, but there is a commitment to civil liberties generally across this chamber. That has to be conceded.
But the Liberal Party will never concede that there is also a shared view of patriotism across this chamber.
The Liberal Party seek to position themselves as the only patriots in this chamber. It is a despicable attitude that belittles anyone else in this chamber who is critical or who does not agree with them, as being unpatriotic, as putting the country at risk, as being soft on terrorism.
These are the sorts of words of war used by Liberals in trying to establish their way on this particular legislation. It is a despicable tactic. I reject it; I know all my colleagues reject it, and I get infuriated when I hear, time and time again, these people opposite assuming for themselves a patriotism that no-one else can share. It is simply not the fact.
The fact is that I do not believe we have got to the specifics. One indication is Senator Ian Campbell's statement from earlier. He says the ALP has rejected security-cleared lawyers. Why don't you actually read the bill? In certain circumstances, we approve of the use of security-cleared lawyers. In an urgent situation, which would prevent a person from using their own lawyer of choice, or if their own lawyer of choice is rejected by ASIO, then the security-cleared lawyers come in. So the statement Senator Campbell made tonight is simply not true.
We would prefer a regime where you could have a lawyer of your own choice, but we put two provisos on that. Firstly, if that person is a security risk, they cannot have them. Secondly, we put in a very tight provision to say that, if a lawyer representing one of these people who is detained for a questioning regime in fact discloses that, there are very heavy secrecy penalties that apply. That covers that off. It covers off the original objection of trying to isolate these people so that the message does not get back to any terrorist groups, or any people that might have knowledge of such, that they are under suspicion.
Senator Campbell says - and so does Senator Hill - that, by not agreeing with the government, in some way we strange individuals, we isolates on this side, are putting the community at risk. This is a massive criticism of President George W. Bush, Prime Minister Chretien, Prime Minister Clark and Prime Minister Blair. Guess what? I have named the four like-minded countries with which we share a very common democratic heritage and a security relationship in the intelligence field that goes back to the end of the Second World War. The club has been in existence and has operated profitably to all our advantage for the past 57 years.
Not one of these other four countries has adopted a regime identical to this. There are some similarities, yes. But with regard to the more extreme parts of the bill in terms of being able to detain people - if it went through in its original, unmodified form according to the government's wish - none of these other four countries have adopted legislation so draconian.
Are we missing something here? Has Mr Blair suddenly gone soft on terrorism? Has President Bush gone soft on terrorism? Has Prime Minister Chretien in Canada suddenly gone soft on terrorism? I think not. They look for alternative ways of dealing with it. President Bush has brought in legislation that deals with aliens, those who are not US citizens. Even that is not as tough as parts of this particular regime.
So we have a situation where we are accused of being unpatriotic, of being soft on terrorism, of not backing up the government in times of crisis, but where none of these four other comparable countries has gone as far as this particular government has.
You have to ask yourself why. The answer to why they have not is that each of these countries has sought a balance between combating terrorism and maintaining a fundamental dedication to civil liberties in their own country - something that those opposite seem willing to sacrifice at the drop of a hat.
The government claims that it has moved on two issues. Exactly six hours ago these two issues, again, were immutable principles. We were told that the sunset clause was absolutely abhorrent to this type of legislation. Now, at 9 oclock, Senator Campbell comes and tells us, 'Yes, well, we didn't really mean that. You can have a sunset clause.' Oh, really? What has changed in that six hours?
But even more amazing is the government's change of attitude in one of the silliest arguments we have ever had, and that is, over who constitutes a prescribed authority. I do not think it is any secret that we indicated that, if we thought for a moment that the notion of a prescribed authority was in danger constitutionally of voiding the bill, we would jettison it. We said that, and people in this chamber know that we have said it. Yet in fact this is where the government have moved in our direction and said, 'Well, after all, maybe the Labor Party proposition is not so bad.'
They have read our legal opinion from Gavin Griffith QC and they know others exist. They argued then that they had a counter-opinion from Mr Orr QC. Where is it? We are still waiting. By all means let us have a letter from the Attorney-General purporting to say what Mr Orr said, but where is the legal opinion so we can clear this up once and for all?
Senator Ian Campbell: You don't need to know.
Oh, we don't need to know! Then in that case you can come in here, Senator Campbell, and table that before we finish this debate, if it exists. Does it exist? Does Mr Orr's opinion exist as a legal opinion signed off by him? I would like to see it because so far we have seen absolutely nothing. Of what was true six hours ago for the government - of what was an entrenched principle, like some of these other matters that they say are entrenched principles - they now say: 'Oh, no, it didn't really matter. We can certainly cede ground on those particular points.'
Then they come in and say, 'The Labor Party are totally divided on this issue.' I have attended all the caucus committees and meetings and most of the discussions on this and I have not in fact found much or any dissent on these particular issues.
We do know that every time there is a parliamentary committee inquiry into these things some government members on some issues have taken a different position to the government. If you are talking about disunity and those sorts of things, look to your own ranks - not that, of course, anyone on your side participated in the debate in the committee stage (the phase in Senate debate of a bill where the amendments are debated one by one).
... On offer here today are two possibilities apparently: the government adopting the modified bill - something they have rejected - or no bill at all. Why don't they go back and ask ASIO what they want? Go back and consult with ASIO to see whether the bill as amended would give them sufficient powers to carry things out. The reason they will not is that politics will always prevail here.
The Prime Minister has just given a press conference in which he said that any terrorist incident from now on will be on the heads of the Labor Party because we have not passed their legislation.
We have never ever tried to say that any acts of terrorism that have occurred or that are likely to occur in Australia are the responsibility of Australian governments. We know it is a far more sophisticated argument than that. We know how difficult it is to track down intelligence on terrorist matters. We know that the government are reconfiguring the apparatus of the intelligence community to concentrate in these areas. We support them in that. We support them in their endeavours to expand both Sigint and its human resources so that they can attempt to detect future terrorist acts.
For the record, there are no guarantees that you can anticipate and abort any future terrorist activity either in this country or in the region. There are no guarantees because for every action there is a reaction; every terrorist group that understands what array of powers will be put against them will adopt policies so they cannot be detected and thwarted.
We must understand that. We cannot have an expectation that a government can necessarily prevent a future terrorist act. That is not possible. If the government are going to say of any terrorist act, Oh, well, that's the Labor Party's fault because they did not give us this piece of legislation, what errant nonsense that is.
It is political positioning at its absolute worst. It is putting the national interest behind political interest, and that does not advance the cause of this nation's fight against terrorism one iota.
It is not as though we are suggesting to those on the other side that the culmination of this is that the bill as now amended is some inept pathetic piece of legislation. It is still stronger than any legislation carried in a comparable country. Have a look at the UK security legislation, with their history of the IRA, and compare that with the Labor Party amended legislation and you will find this is tougher.
There were big asks here. It is not easy to come into the parliament and say, after 101 years of federation, 'We want you to give up the right of silence, especially when you are not a suspect' - because, let us face it, most of this legislation will be directed against nonsuspects rather than suspects. There is a whole range of legislation that can be brought in to deal with potential suspects and terrorists. This legislation will concentrate mostly on nonsuspects who have relevant information which, if they are forced to divulge it, will protect Australian lives.
You can go to the legislation of Canada, New Zealand, the UK and the US and you will not find a more stringent set of requirements than those that appear in this legislation. The reasons why the government will not come to accommodate our position on this are purely political, purely exploitative and purely a matter of positioning.
There is no question that up until about 10 days ago negotiations were under way. Then the old orders come out of YAG central around the corner - the Prime Minister's office - and what do we get? The end of negotiations; the positioning; the backgrounding of The Age newspaper for that article that says, 'This is nitpicking. We will go no further'.
In fact, we have come to the party and we have offered reasonable, well argued and well thought through amendments. For political reasons, this government has decided to reject those and has decided to create an atmosphere such that if anything goes wrong, at any time, in the intelligence community or with terrorism, it will be the Labor Party's fault. What a despicable attitude!