Thursday, 18 March 2010
Independent National Security Legislation Monitor Bill 2010
Debate resumed from 17 March, on motion by Mr McClelland:
That this bill be now read a second time.
When I was speaking last night on the Independent National Security Legislation Monitor Bill 2010, I was referring to the contribution we have heard from those opposite, in particular the member for Stirling and the member for Mitchell, who regrettably, having professed bipartisan support for this legislation, sought to gain some partisan advantage by referring to the work of the member for Kooyong, who introduced a private members bill in 2008 dealing with the same subject. I wish to acknowledge the work of the member for Kooyong, which has been very important in drawing to public attention the model that has been employed in the United Kingdom now for many years: an independent monitor or an independent reviewer of national security and antiterror legislation.
But those oppose who referred only to the recent work of the member for Kooyong, notably the private members bill he introduced in 2008, really need to properly explain the context in which this parliament now comes to be considering the proposal contained in this bill for a national security legislation monitor. Put in its full context, what we can see is that the member for Kooyong, as far back as 2005 in a paper that he gave to the Castan Centre for Human Rights Law, which does great work—it is a centre associated with Monash University—was even then urging that Australia adopt the model of an independent reviewer or an independent monitor for national security legislation. Regrettably—and I can be a bit partisan about this—the Howard government, which introduced this large suite of antiterror legislation from late 2001 to 2005, did not take up the suggestion that was made by the member for Kooyong, not only in the paper he gave in 2005 but repeatedly and publicly in all the years since, and it has been left to the present government to act on not merely the suggestion made by the member for Kooyong but the suggestions, recommendations and proposals put forward by successive reports to the parliament and by successive public calls elsewhere to act on those calls and introduce a national security legislation monitor, which is what is now the proposal contained in this legislation.
It is worth referring to the analysis and suggestions put forward by the Sheller review in 2005, tabled by the then Attorney-General in 2006, where there was consideration of a number of possible models for achieving review of national security legislation. It is worth referring, in particular, to the unanimous report of the Parliamentary Joint Committee on Intelligence and Security from 2006, which made the clearest possible call for a recommendation that the government appoint an independent person of high standing as an independent reviewer of terrorism law in Australia, that the independent reviewer be free to set priorities and have access to all necessary information calling for regular reporting and indeed recommending an appropriate link between the Parliamentary Joint Committee on Intelligence and Security and an independent reviewer, if one were to be introduced. The Parliamentary Joint Committee on Intelligence and Security, of which I am proud to be one of the present members, returned to the topic in a report in September 2007, again reminding the government that it had earlier called for the establishment of an independent reviewer and again calling for the introduction of such a mechanism. More recently, in the investigation that was conducted by retired Supreme Court judge John Clarke in 2008 into the case of Dr Mohamed Haneef, John Clarke QC recommended that consideration be given to the appointment of an independent reviewer of Commonwealth counterterrorism laws.
Across the board there have been repeated calls for the introduction of an independent reviewer or an independent monitor, and it is very pleasing to see in this bill the introduction of that particular oversight mechanism. The member for Kooyong, in all of his calls for this, has referred to the longstanding institution of the same type in the United Kingdom. I met with Lord Carlile, who is the present occupant of the monitor role in the United Kingdom, here in Canberra and again last July in London. His precise title is ‘independent reviewer’. I have had the benefit of speaking to him and hearing his views about the role that he has been able to play as the independent reviewer. If any member of this House is interested in the role of the independent monitor that this legislation establishes, I commend to them the multiple reports of Lord Carlile. His most recent report is dated 1 February 2010 and it looks in very considerable detail at the role of control orders, a device that has been adopted here in Australia and happily one which is infrequently used in Australia. In his most recent report in the United Kingdom, Lord Carlile looks at their control order system and makes some very considered and thoughtful recommendations about the continuing need for a control order system, and suggests that the number of cases in which control orders are really needed to be used is very small. He also suggests that other mechanisms might be adopted where the objective is to prevent travel abroad by particular persons.
If anyone is seeking to learn or contemplate what role an independent reviewer or the independent monitor might play, the recent reports of Lord Carlile show just what a useful role can be played by an independent reviewer because it has the effect of taking out of day-to-day partisan political debate consideration of what should be very important issues for the community. They are long-term issues and they enable a more measured consideration of the balance between empowering our authorities in a sufficient way to fight terrorism and, at the same time, maintaining respect for individual liberty and maintaining the rule of law. What must never be forgotten in all of the consideration of this kind of legislation, in considering what should be the extent of powers that are given to authorities and what should be the extent of oversight of those powers, is that maintenance of the rule of law and preserving individual liberty are key weapons in the fight against terrorism.
The bill, as initially introduced by the government, has been looked at in very considerable detail by the Senate Finance and Public Administration Legislation Committee and I commend to the House the work of that committee. The committee received dozens of submissions, most of them commending the essence of the proposal to establish a national security legislation monitor, but many of the submissions also expressed some detailed criticisms of some aspects of the bill. Following the receipt of that report from the Senate committee, the government has accepted many of the recommendations made by the committee. The House now has before it a considerably improved model for the national security legislation monitor.
We have now an amendment to the bill which includes the word ‘independent’ as the description of the monitor. We have better reporting requirements. We have better arrangements for the monitor to be able to receive suggestions from the Parliamentary Joint Committee on Intelligence and Security. It is hoped that the legislation will pass quickly and that an appointment can be made to the monitor position soon. Coming into operation will be processes to enable review of the large body of antiterror and national security legislation that has come into existence since the dreadful attacks in New York in 2001. I am hoping that we are going to see improvements to Australia’s national security legislation out of the process of review, both regular and special, that is to be conducted by the monitor. We are going to see measured consideration of Australia’s national security legislation. We are going to see discussion conducted slightly outside the atmosphere of partisan political debate about where the balance should be struck between the protection of individual liberty and arming our authorities with appropriate powers. I commend the bill to the House.
Since the 9-11 attack and attacks on the Australian people and infrastructure abroad, action by the Australian government to amend the Criminal Code Act 1995 was understandable, notwithstanding the unease that rippled through the Australian community about the concerns and issues of freedom and liberty—as the member for Isaacs has just said. The amendments were necessary in order to widen the scope of the act and give the Australian Federal Police and other government agencies unprecedented power through the antiterrorist legislation. Prior to this, Commonwealth criminal law did not explicitly recognise the nature of terrorist crimes against the community. Since then the Commonwealth has passed over 40 pieces of legislation to do with security and intelligence in response to terrorist threats.
The significance and potential impact of a vast body of antiterrorism laws calls for continuous independent monitoring of the laws and their operation. This is something the British government did when they established an independent reviewer of terrorism in 2000. The reviewer in the United Kingdom, as the member for Isaacs has said, is Lord Carlile QC, and it has engendered greater public confidence in antiterrorism measures in the United Kingdom due to the provisions of independent reports through the government and the parliament. Valuable insights into the operation of the laws have been provided, and Lord Carlile’s role has actually been expanded since his initial appointment.
The need for antiterrorism laws in view of the unprecedented terrorist attacks around the globe is, in my view, indisputable, but the public must know that the government is taking all reasonable steps to protect people’s lives and national infrastructure. George Williams, who heads the Terrorism and Law Project at the University of New South Wales, quite sensibly warned that, ‘Getting counterterrorism law right is the greatest challenge facing lawmakers anywhere.’ It must be acknowledged that such laws create considerable tensions between the wider public interest and safety and the individual’s right to freedom and liberty—characteristics that have underpinned the very fabric of our western democracies.
The government has a responsibility to act to protect Australian people and to protect Australian interests but, as the Hon. Simon Sheller AO, QC, the chair of our Security Legislation Review Committee established by the Howard government in 2006, reported:
The protection of public right of security and the rights of the individual are not mutually exclusive, but interrelated obligations.
Notwithstanding the ever-present threat of terrorist acts in the contemporary world, our responsibility as legislators is to always strive to retain a rational, proportional and fair response to the threat of terrorism. It was out of concern for these principles that my colleague the member for Kooyong, who is here in the House today, had the foresight to draft a private member’s bill for debate in this House in March 2008, two years ago. The bill was seconded by me, but unfortunately this important piece of legislation—which sought to safeguard public interest by establishing an independent reviewer of terrorism laws—was gagged in this chamber. The bill retained a rational and fair response to public disquiet about the passage of antiterrorism legislation. Not to be deterred, and to his great credit, the member for Kooyong worked with Senate colleagues to have the bill introduced into the Senate in October 2008. The bill was subsequently referred to a Senate committee, which endorsed it with some amendments, and its passage through the Senate took place in November 2008. It never returned to the House of Representatives.
There was already a sound basis for such legislation following the parliamentary review of Australia’s terrorism laws in 2006, which I just referred to, and the review that was conducted by the Parliamentary Joint Committee on Intelligence and Security, which indeed drew on the work previously undertaken by the Hon. Simon Sheller. The committee noted in its report to the parliament that there were some existing oversight mechanisms but they were sporadic, inadequate and had limited effectiveness. According to the committee, up to 2006 there were 479 investigations under existing laws with about five per cent of those resulting in prosecutions. In two cases there was a plea of guilty to charges under the legislation.
In bringing to the House in 2008 the Independent Reviewer of Terrorism Laws Bill, the member for Kooyong hoped to give voice to the recommendations of the PJSCIS and install an office of independent reviewer to oversee the operation of the whole package of antiterrorism laws. An independent reviewer can take a holistic approach that will serve the task of protecting Australians and ensure the smooth functioning of the legislation. Given the exceptional circumstances that have given rise to these far-reaching laws and extraordinary powers, the review process needs to be ongoing and focus on more than isolated elements of the legislation. The review needs to give weight to the operation, effectiveness and implications of those laws. Speaking on the Anti-Terrorism Bill (No. 2) 2005, I said:
I understand the necessity for the government’s endeavours to balance the safety and security of citizens against some restrictions on our accustomed freedoms. Nevertheless, such a worrying time requires cool heads and a commitment to use only such laws as are absolutely necessary to protect human lives and critical infrastructure.
In response to concerns that the new laws could lead to the undermining of the fundamentals underpinning our liberal democracy, undertakings were given by the government to review the operation of the legislation and to apply a sunset clause. These concerns included the lack of adequate oversight mechanisms, the operation of control orders and preventative detention, expansion of sedition laws, disclosure offences and the length of the sunset clause.
The case for an independent reviewer is compelling. I quote from the Sheller review executive summary:
… legislation must be well framed and have sufficient safeguards to stand the test of proportionality and fairness and to withstand administrative law challenge. This is particularly so where, as here, there is no sunset clause on the provisions under review, as is the case here. Australia has no formal Charter of Human Rights.
The Sheller executive summary went on to state:
The SLRC considers that some parts of the amendments to Part 5.3 of the Criminal Code appear to have a disproportionate effect on human rights and could be subject to administrative law challenge.
It is important to understand that the need for an independent reviewer arises from the broad sweep of antiterrorism laws which stand apart from traditional criminal law principles. The parliament has given the executive the legal powers and resources they need to deal with possible terrorist threats against Australian people and interests. Few would argue against a proposition that it is the duty of this parliament to provide the government with adequate powers. However, with such sweeping and unprecedented powers, there must be checks and balances on the exercise of those powers by executive government. Given the sheer volume of legislation dealing with terrorism and security adopted by the Commonwealth, we must make sure that adverse, unintended consequences are minimised to ensure public confidence.
Australia has a proud history as a world leader in administrative law, allowing citizens great access to reviews of administrative decisions in the Administrative Appeals Tribunal. We should strive to maintain that level of confidence in our law-making and implementation in all areas. The Georgiou bill had the effect of establishing a rigorous and arms-length review process. Until the government accepted some of the changes proposed by the Senate committee, the one important element missing from the government’s bill was the independence of the reviewer and I am pleased that the government has reconsidered this and that the title of the bill refers to an ‘independent’ monitor.
There are some who have postulated that those who fear the invasive terrorism laws are those who have something to hide. If we are going to be consistent in the application of this logic, then we should also apply it to this proposal. We should not have anything to hide in the workings of our antiterrorism laws, so we should have nothing to fear from the appointment of an independent reviewer.
In his response to the government’s original bill, following the gagging of his bill for an independent reviewer, the member for Kooyong wrote an article published in the Age in October last year, titled ‘How to thwart a bill in three easy steps’. In part it read:
The Government has now introduced the National Security Monitor Bill, which it claims reflects the recommendations for an independent reviewer. Nothing could be further from the truth.
The notion of an independent reviewer crystallised over time. In 2005, I pointed to an appropriate model, the British Independent Reviewer of the Terrorism Laws, who has for years reported publicly on the effectiveness and fairness of the British terror laws.
It is instructive to read the member for Kooyong’s account of how this bill reached this place in its present form. He also says, in that article:
The incoming Labor Government did not commit to an independent reviewer before its election.
The “just ignore it” manoeuvre was exhausted by 2008 when the Independent Reviewer of Terrorism Bill was introduced by private members. The Government gagged debate in the House of Representatives, and it was introduced into the Senate. The multi-party Senate committee charged with examining it unanimously recommended that the bill be supported subject to some changes. The Attorney-General’s attempt to flick the review role to the Inspector General of Intelligence and Security miscarried. The amended bill was passed by the Senate, supported by Coalition, Greens, the independent and Family First senators. Labor Senators opposed it, claiming they wanted to consider it in light of the recommendations of the Clarke inquiry into the Haneef affair. Eight days later Clarke recommended appointing an independent reviewer.
It was a good thing that the member for Kooyong spoke out loudly for some of the welcome changes that the government has made.
Apart from the independence of the monitor, these changes include the empowerment of the monitor to initiate reviews and to accept references from the Parliamentary Joint Committee on Intelligence and Security, restrictions on the Prime Minister’s power to set the priorities and amend terms of reference for those inquiries referred by the Prime Minister and the abandonment of compulsory vetting of the report by ministers. The Prime Minister is required to table in the parliament a declassified version of any report provided to him and this does greatly improve the reporting mechanism. So these are important changes and I think we can all thank the member for Kooyong for pressing these important points home. We are now seeing these issues better reflected in this bill, the Independent National Security Legislation Monitor Bill 2010, which is before the parliament today.
There are, though, some remaining concerns. These include the monitor’s power to examine any law that has not been applied currently or in the past financial year. Under these provisions, that power remains ambiguous. Further, the only reports the monitor can provide to the parliament are the annual report and reports on matters referred by the Prime Minister. Another concern is that any operational reports covering a part of the year, or any special reports produced at the initiative of the monitor, can only be included in the annual reports—it is not permitted for them to be presented separately, outside that mechanism. In addition, despite the standard provisions providing flexibility in the appointment of a statutory officer, allowing them to be appointed on either a full- or part-time basis, this bill differs from the standard in that this bill has a statutory provision that the monitor be appointed on a part-time basis only. So there is little flexibility. Also of concern is that the monitor will not be permitted to review the priorities of, and use of resources by, agencies involved in the implementation of Australia’s counterterrorism and national security legislation.
Having a truly independent reviewer who can conduct annual reviews into key antiterrorism legislation has indeed proved highly effective in the United Kingdom and it has been influential in shaping future policy decisions, as it should. So we are very grateful for the changes that have been made and, particularly, for the change to having a truly independent reviewer. Lord Carlile observed that such an independent reviewer as we are legislating for today:
… should have independence of mind, political independence and ‘a willingness to think out of the box and look in a conceptual way at counter-terrorism law and policy.
There has been a lot said over the years about this issue. It is an issue that has challenged many liberal democracies around the world. Indeed, Lord Denning, in the House of Lords debates on the UK Prevention of Terrorism Bill in 1984, made, I think, quite an interesting comment. In speaking about an amendment to the bill, he said:
The whole object of this amendment, as I understand it, is to have a commission. I had, at one time, a good deal to do with inquiry into security matters. I should have thought a commission was extremely good … [T]hey should have suitable Privy Counsellors who will be able to inquire, not into actual details of individual cases but into how the Secretary of State is exercising his powers in this regard. That can only be done if they are monitored and a report is made to Parliament from time to time so that we can see that these exceptional powers have been well exercised.
They are timely words—although they were spoken quite some considerable time ago.
Before I conclude my remarks today, I would also like to acknowledge the significant contribution that the member for Kooyong has made in this place to ensure that all Australians can have reasonable confidence that the balance has been struck between the need to protect the nation against terrorist attacks and the solemn duty of maintaining the core of our liberal democracy—the principles of freedom and of liberty.
This is an important bill, and I am very grateful to be able to be here today to listen in person to the very insightful contributions of the member for Isaacs and the member for Pearce. I think they have contributed a lot to the debate—a debate which will continue for a while. The need to establish an independent reviewer of Australia’s counterterrorism legislation has long been apparent, but it has been resisted by both coalition and Labor governments. The bill before us, the Independent National Security Legislation Monitor Bill 2010, is therefore a very welcome step forward.
Terrorism has always been a part of human conflict, but we now recognise that the terrorist threat has escalated into a new dimension. I do not underestimate this threat. Prior to the attacks on the US in 2001, I had spoken about ‘a new generation of terror movements committed to the destabilisation of democratic society’ and observed that ‘terrorist leader Osama Bin Laden has decreed that the attainment of weapons of mass destruction to deploy against the West is a religious duty.’ While recognising this new danger, I cautioned at that time that ‘the measures we employ to combat the new terrorism must not undermine democratic core values.’
The responsibility of democratic government is to protect both the security of its citizens and the liberty of its citizens. The pressure on governments to unduly subordinate democratic values and processes to the demands of security is, however, immense. Prompted by the terrorist attacks of September 2001, the Australian parliament began enacting what became an avalanche of counterterrorism legislation. At last count, around 50 antiterrorist laws have been passed in the last 8½ years. The parliament has, on occasion, tempered some of the more draconian aspects of these laws. Overwhelmingly, however, the parliament has, on a bipartisan basis, supported the multitude of tough, antiterrorist laws introduced by the executive, and we have witnessed the strengthening of police and security powers and a curbing of freedoms and legal protections against the state.
The challenge of effectively protecting security without undermining fundamental rights requires constant, rigorous vigilance. Accordingly, legislators and government-appointed inquiries from both sides of the House—bipartisan committees—have increasingly pressed for an independent and ongoing review of the fairness and effectiveness of these laws and their impact on basic human rights and liberties.
In 2005, amidst a new surge of legislation following the London bombings, I raised the need for regular, authoritative and public reports on the operation of the antiterrorism laws. The United Kingdom seemed to have an appropriate model, a statutory independent reviewer of terrorism laws—a reviewer who scrutinises and reports on whether the counterterrorism laws in the UK are effective and being used fairly.
In April 2006, the Security Legislation Review Committee, appointed by the Howard government, recommended that consideration be given to establishing an independent reviewer of terrorism laws, to examine the operation and effectiveness of the terrorism laws and any government proposals to amend them. This was strongly supported in 2006 and again in 2007 by the bipartisan Parliamentary Joint Committee on Intelligence and Security. The committee recommended that the reviewer be free to set his or her own priorities and report annually to the parliament. The then government did not respond to the calls. But the calls did not go away.
In March 2008, the member for Pearce and I, as private members, introduced the Independent Reviewer of Terrorism Laws Bill 2008. I thank the member for Pearce for her very active participation in the whole process of debate on the counterterrorism laws and their implications and for her co-sponsoring of that bill. The debate on that bill was gagged by Labor in the House. In June 2008, Senator Judith Troeth and Senator Gary Humphries introduced the bill in the Senate. In October 2008, the multiparty Senate Standing Committee on Legal and Constitutional Affairs unanimously recommended that the bill be passed and strengthened. In November 2008, the bill passed the Senate, supported by the coalition, the Independents and the Greens. Labor voted against the bill on the grounds that it was awaiting John Clarke QC’s report on the Haneef case. Eight days later, Mr Clarke did report. He found that an independent reviewer could play an important role and strike the necessary balance between preventing terrorism and protecting individual rights and liberties, and he accordingly recommended.
It seemed the government could no longer refuse to face this issue and, in June 2009, I was genuinely glad that the government introduced legislation entitled the National Security Legislation Monitor Bill 2009. Sadly, when I examined the bill, I wondered whether the bill had been drafted by Sir Humphrey Appleby’s craftier brother. The government’s bill subverted every essential principle of an effective independent reviewer who would command the respect of parliament and the community. The bedrock of all the recommendations for a reviewer was that the reviewer should be independent and free from executive control and censorship. This requires the freedom to initiate reviews to determine priorities and to examine all terrorism laws and it requires the freedom to report publicly in an unimpeded manner on the results of an inquiry. The government’s original bill did not permit any of these things. There was no legislative provision for the monitor to initiate his or her own reviews or to determine the priorities of reviews. Instead, reviews were to be initiated and priorities assigned by the Prime Minister who could alter the terms of reference at any stage.
The monitor’s report on these investigations would not be presented to the public or the parliament. The monitor could only report to the parliament once a year in an annual report. The report had to be vetted by every relevant federal, state and territory minister. The bill was unsupportable. Thankfully, this is not the same bill that is before us today. The government has responded to the bill’s critics and the recommendations of the Senate’s Standing Committee on Finance and Public Administration inquiry. My coalition colleagues, together with the Australian Greens, have secured vital amendments in the Senate. The monitor is now explicitly empowered to initiate his or her own reviews. The monitor is now able to accept references from the parliamentary Joint Committee on Intelligence and Security. The Prime Minister’s powers to set priorities and amend the terms of reference of an inquiry have been restricted to those inquiries that have been directly referred by the Prime Minister.
The reporting mechanisms have been improved. Where before there had been no mechanism for public reporting on a matter referred to the monitor by the Prime Minister, there is now a requirement that a declassified version of any report provided to the Prime Minister—including any interim report he might ask for—must be tabled in the parliament. The compulsory external vetting by ministers of any of the monitor’s reports has been abandoned. Instead the monitor may use his or her own discretion to decide whether or not a report contains sensitive information. If the monitor does decide that such is the case, the monitor is to present an original, classified version to the Prime Minister and provide an additional declassified version for tabling in parliament. I would expect that this would empower the monitor to report publicly in a way similar to Mr Clarke in his inquiry on the Haneef affair. Mr Clarke said:
I readily gave assurances that I would conduct the Inquiry in such a way as to protect any information that might jeopardise national security or other sensitivities. Notwithstanding these limitations, the hope was that most of the inquiry’s business could be managed in such a way as to allow the public to be informed and to gain some understanding of and have input to the Inquiry’s proceedings.
I think that the sort of declassified report that Mr Clarke presented is an appropriate model for the sorts of things that the independent reviewer can look at and for the way in which he can report. Overall, the amendments that have been made substantially bolster the monitor’s capacity to act independently in initiating and directing investigations and in exercising discretion regarding the publication of sensitive material.
There are still some concerns, however. Firstly, there is the requirement that the monitor give particular emphasis to the provision of legislation that has been applied in that financial year or the immediately preceding financial year. The explanatory memorandum to the original bill—in one of the more brutal statements I have seen in an EM—states:
Reviewing the laws when they have not been used would be considered an ineffective use of the Monitor’s time and resources.
That shows the high regard for the monitor’s independence that the first bill reflected. This rationale is a bit puzzling, given that one of the monitor’s explicit functions under the amended bill is to consider whether any legislation remains necessary. To perform this function, the monitor will axiomatically have to consider redundant laws that have not been used. This is an apparent inconsistency within the bill. I suggest that the minister make it clear that the monitor’s functions, as set out in the amended bill, render this part of the explanatory memorandum null and void.
Let me turn to some other concerns. While there have been improvements regarding the tendering of the monitor’s reports, significant issues remain about the limited nature of those reports and their timeliness. The annual report and the reports on matters referred to the Prime Minister are the only reports that the monitor can provide to the parliament. The monitor cannot submit a report to the parliament on his operations covering part of the year or any special reports written on his own initiative. These inquiries can only be reported in the monitor’s annual report. This means that the monitor’s public report on a self-initiated inquiry could be very considerably delayed regardless of the urgency or impetus of the inquiry. A far better model of reporting is contained in the Ombudsman Act. This enables the Ombudsman to submit own-motion reports or part-year reports to the minister and have them tabled by the minister within 15 sitting days of receipt.
It is also a matter of concern to me that the bill has a statutory provision that, in my experience, is unique—the requirement that the monitor shall only be appointed on a part-time basis. The standard provision in legislation governing appointments is that a statutory officer may be appointed on a part-time or a full-time basis, which gives the executive the flexibility without legislative amendment to go for one or the other, whatever they find most appropriate in the circumstances and in the person that they intend to appoint. The government has provided absolutely no justification for imposing such a unique restriction and, given that this is a new authority, the appropriate approach, in my view, would have been simply to employ the standard flexible provision that the monitor is to be appointed on a full-time or a part-time basis.
The bill also specifically precludes the security monitor from reviewing:
… the priorities of, and use of resources by, agencies that have functions relating to, or are involved in the implementation of, Australia’s counter-terrorism and national security legislation.
This will clearly preclude the monitor from making findings such as those made in the UK in Lord Carlile’s June 2008 report—for example, that:
… it is not a good use of precious resources if they—
that is, police—
waste them on self-evidently unmerited searches.
From time to time police officers are still being abstracted from counter-terrorism work to other police duties. This is rarely acceptable, especially where the special branch is small.
I do not believe that the independent monitor could make those sorts of observations, since they obviously go to the priorities and resource allocations of the agencies.
This might well be the last opportunity I have to contribute to a debate on terrorism in this House, so I would like to conclude with some general observations. The issues of terrorism and the appropriate responses to it have been of major concern to me for over thirty years, ever since I was working for Malcolm Fraser at the Sydney Hilton Hotel when the hotel was bombed in the first terrorist outrage to be perpetrated on Australian soil and when the decision was taken for the first time in Australian history to call out the Australian Defence Force in support of the civil power.
There is no doubt that terrorism is a real and present threat to innocent people today and to the fabric of all societies. The government of a democratic society has a fundamental obligation to protect its citizens from terrorist outrages and to have laws and security agencies that are effective in achieving this end. It is also imperative that the means a democracy uses to combat and defend against terrorism do not undermine the core values to which we as a society are committed—to the rule of law, due process, civil liberty and human dignity. There is a tension between security and democratic values. This tension cannot be dismissed by asserting: ‘The most fundamental right of all is the right to human security.’ I believe that over recent years we have gone too far in subordinating our core values to the demands of security. There is an almost irresistible tendency for governments facing threats to their society to implement responses that unduly erode the freedoms that are at the very basis of democratic life. But I also believe that our democratic commitments, institutions and practices can work to restore the balance. They do not provide an automatic, self-correcting mechanism, however. The concerted efforts of people in various sectors are necessary. Politicians, journalists, lawyers and concerned citizens—and more generally as well.
The parliament has a vital role to play and parliament has on occasion played it. When one thinks back on the excessive measures that the executive sought to introduce in the first tranche of antiterror bills in 2002 and how many of those proposals were abandoned, one can have significant pride in the capacity of our parliament to temper excesses in a context of profound and widespread anxiety about the possibility of horrific acts being committed on our territory. Had the executive had its way, some people could have belonged to proscribed organisations without even knowing it and could have been jailed for 25 years. The onus of proof in terrorist cases would have been reversed. People would have had to prove their innocence. Strict liability would have been imposed on people for outcomes that they had no reasonable way of anticipating—or even an unreasonable way of anticipating. That we do not live in such a society is to a significant degree a credit to our parliamentary processes, to backbench activism and to the operation of our parliamentary committees.
I think it is important to recognise that the lack of government control of the Senate has made the establishment of this office possible. What has been achieved is not perfect; few things in politics are. But the bill before us is at least a world away from the neutered monitor, the monitor set up to fail, that the government tried to pass off on its first try. What we now have is not just the addition of the word ‘independent’ to the title of the monitor but a statutory office that has a decent chance of making a difference. I commend the bill to the House.
I welcome the opportunity to make comments on the Independent National Security Legislation Monitor Bill 2010. Just last week at the luncheon for the Indonesian President I was having a discussion with some of my colleagues from the other side of the chamber. Someone—I think it was the member for Deakin—said to me that we all remember where we were on September 11. Certainly, I remember it very clearly. I was still an Army officer at that point—the highest ranked member of the regular Army with headquarters 13 Brigade over in Perth, the Army Reserve brigade. It was a Tuesday night. It was a parade night for the Army reservists so we were all there. I was sitting in my office doing some paperwork when one of the corporals came into my office and said, ‘Sir, someone has just flown an aircraft into one of the towers of the World Trade Centre.’ That was a little bit on the surprising side. Apparently the event had happened several minutes before. I got up and I walked into the room where there was a television playing. Most of the headquarters staff were gathered around the television. There was commentary on the TV about what had happened and then, right in front of the cameras, the second aircraft flew into the second tower. For those reasons a lot of people remember where they were on that day. America had had issues in the past, but this was such a significant, high-profile event that had happened. I think it really shook the world in a lot of ways. It shook the Western world in a lot of ways. I think that we need to look at the actions that took place after that through that context.
Here in Australia we have to remember that it was just the year before that we had the Olympics. I worked on this security operation when I was in what we called JTF 112—that is, Joint Task Force 112. It was Joint Task Force Gold, the non-anti-terrorist part of the Defence support of the Olympics. In that task force I was involved with the bomb search and other elements. I know what happened during the Olympics and how trouble-free the Olympics were. There was a lot of talk beforehand about the possibilities of sarin gas attacks in railway stations and things like that, so a lot of scenarios had been worked through and a lot of effort had been put into the preparations for the Olympics, but it all went off pretty well. Basically they were incident free and certainly terrorist free.
Having gotten that confidence and certainty here in Australia, just a year and a bit later we saw such a dramatic attack on what most would describe as our lead ally. It was a dramatic attack on the No. 2 city in their nation and I think it shook a lot of people. When we look beyond September 11 we look to the Bali bombings, the bombings in London and indeed the local threats that have been realised and have come to prosecutions and convictions. I think that these events have sharpened the focus. I know that preventative detention and control orders were a function of the response to September 11. I think a lot of people in this country have a belief that those were essential at the time and that the reaction, whilst significant, was not an overreaction.
Nevertheless, we need to keep in mind that the difference between democracies and authoritarian regimes is that democracies put in place laws for the protection of their citizens—I look upon that a little more widely than just the security aspects to include the protection of rights as well—whereas the laws of authoritarian regimes seem to be there to protect the regimes and control the citizens. I do not think we need to back away from what we have done in the past or to think any less of ourselves because of the actions that needed to be taken after September 11 and that have been reinforced in a lot of ways through the threats that we have seen realised around the world in the years since. Nevertheless, these laws should not be undertaken lightly. As a democracy, we need to keep reviewing these sorts of laws and we need to be prepared to critically examine what we have done in the past to make sure that the rights of our citizens are protected in congress with the safety and security of our people and our institutions.
We heard from some very good speakers in this parliament—and they are all very good speakers—including the member for Isaacs, the member for Pearce and the member for Kooyong. On this side, the members for Pearce and Kooyong have a history of involvement in this area. I do not see eye to eye with them on all matters within this parliament, but I appreciate their history and their advocacy for independence and openness regarding these matters. I still endorse what happened before and the actions of the previous government to put in place the safeguards to look after our citizens because I think the threats were there at the time. I think the threats remain and we always need to be on guard against them. But we should never be worried about trying to conceal those laws or protect them from scrutiny because when we look at the threat and the laws that were put in place those laws can stand up.
I welcome this bill and the provisions for a national security legislation monitor. As I said, I pay tribute to the member for Kooyong and the member for Pearce for their advocacy and their putting this up towards the start of 2008. I also acknowledge the efforts of Senators Troeth and Humphries in the Senate to bring these matters to the fore and their advocacy to increase the clarity, independence and visibility of the laws that have been put in place. After putting down the bills from the member for Kooyong and putting the efforts of Senators Troeth and Humphries to the sword in many respects, I understand that at the end of 2008 the government announced that they would take up this matter of having a monitor, and that is good. However, as the member for Kooyong said, what the government brought forward in the first version of this bill would not provide this independence and scrutiny. It was going to be pretty much a government executive directed control of the reviewer, so it is hardly right to suggest that that would be independence. Following the amendments, we have seen the removing of the requirement for the monitor to be subject to the direction of the executive and the Prime Minister.
Of course, the purpose of this bill is to appoint a national security legislation monitor who will assist ministers to ensure that Australia’s counterterrorism national security legislation is effective in deterring and preventing terrorism and terrorism related activities which threaten Australia’s security, is effective in responding to terrorism and terrorism related activities, is consistent with Australia’s international obligations—including human rights obligations—and contains appropriate safeguards for protecting the rights of individuals.
I look forward to the progress of this bill and I look forward to this bill passing in the amended form, because I think that this will bring the scrutiny, the openness and the independence to security and antiterrorism legislation that this country should have. I say again that in my view we do not need to withdraw, back away or apologise for what had to happen at the time. We had been shaken. We had come from a certain level of confidence and security in this country with the Olympics, then we progressed roughly to September 11 and then bombings in other places around the world—including direct attacks on Australians. I think we should always be prepared to put in place laws to protect our citizens. But we should never be afraid of the scrutiny that goes with it.
I welcome the amended version of this bill and I look forward to its passing.
The Independent National Security Legislation Monitor Bill 2010 reminds us of the very simple proposition: who will watch the watchers? Who will guard the guarders? Who will protect against abuse of power by the protectors?
This parliament makes laws to protect Australians but we must always make sure that those laws and the actions we take are subject to scrutiny and independent observation and do not put at risk the fundamental freedoms and liberties which are the very reason we exist as a parliament. We exist not to further the work of the government; we exist to give people the best chance to pursue the life of their choice in a country which is free and open and which tolerates dissent but which does not tolerate threats upon the life or liberty of others. That is the essence of what we believe in as a parliament and as a party and a political movement. It is a statement of where we should be going in this century.
The context for this debate is very simple. September 11 heralded a new phase in global terrorism. Global terrorism has been with us for a long period now. It started, in essence, with the hijackings of planes which we saw throughout the 1970s. But it has progressed and we now face the spectre of nuclear terrorism through the agency of the dirty bomb, which is something that our generation and coming generations will have to deal with in this place. It is my sincere hope that as the world reaches towards the year 2050 we will not have faced such an attack, but it is utterly foreseeable, it is forewarned and we must take steps to ensure that there is no prospect ever of nuclear terrorism in the form of the dirty bomb or a lesser-grade of nevertheless hideous terrorism. We should take all possible steps to ensure that these concerns do not come to pass.
It is a clear and present danger: it is tangible, it is real and it is desired by those who seek to cause havoc, whether it is out of a sense of nihilism, out of a sense of venal mendacity or out of political desire. There is clearly a destructive intention, there is the capacity to carry out that intent and there is the willingness to bring these things to pass. If September 11 could have been carried out in a larger way than that in which it was done they would have wreaked that havoc. So let us be clear that whether it is al-Qaeda or an offshoot, whether it is another grouping, such as those who carried out the Oklahoma bombing, or whether it is those with just the pure political will or intent, the prospect of terrorism is a clear and present danger which will continue throughout the coming decade and beyond.
We certainly see that there are sects and sections within the Islamic world, such as extremist Wahhabism, which present a danger. Mainstream Islam is a great and beautiful religion, and it is a force for good in the world—I make that absolutely clear in my words. But there are those who will pervert the edges of that for political purposes, for personal advancement or for carrying forth individual grievances—as there are in Christianity or other religions. But the most clear and present danger, as we see at present in parts of Iraq, Afghanistan and Pakistan, and in the desire to take control of Indonesia, Egypt and Saudi Arabia, are some elements of extremism which are a violent force.
Against that background we need strong laws which allow us to deal with the world as it is now, and that means communications and dealing with and discovering those plans which are hatched in secrecy and carried out under the cover of darkness. I make no apologies—none—for supporting strong laws in terms of national security and intelligence gathering.
But if we have those laws we need laws such as this, the Independent National Security Legislation Monitor Bill, which was the child of the member for Kooyong, Petro Georgiou. It was similarly supported by Senators Troeth and Humphries and also the member for Pearce, Judi Moylan. They outlined the need for this bill. It was resisted by the government; it has now been adopted and under such circumstances we will offer bipartisan support. It is about ensuring that there is independent observation of the laws which we set down for Australia with regard to intelligence, security and counterterrorism activities. Those laws are needed but, similarly, this law in this place at this time is overdue. I commend it, I support it and I give great respect to the members for Kooyong and Pearce and to Senators Troeth and Humphries. I thank the government for having finally adopted that which they had previously proposed and brought before both this House and the Senate.
It is time for a national security legislation monitor who is genuinely independent, who reports to the parliament, who is not subject to executive control and who will call it as he or she sees it. That is the safeguard we need in Australia. It complements the safeguards we take against those of malicious intent. I endorse this legislation and I congratulate the member for Kooyong.
I welcome the Independent National Security Legislation Monitor Bill 2010 as a form of push back by capital L Liberty. We have seen over the last decade too many of our rights and freedoms as individuals and as a society lost in this global definitional battle around concepts such as terrorism, national security, safeguards and freedom. Conceptually, this is an important piece of legislation. I note, listening to many of the speakers, that success has many fathers. It is a compliment to those who write legislation when both sides of this chamber want to claim it as their baby.
The former speaker, the member for Flinders, made reference to several on the coalition side. I fully endorse his comments, in particular those comments about the members for Kooyong and Pearce, who I can say I now know personally. I fully respect the position they have taken on these issues for a long time through some very difficult times when a government of the day was faced with some very confronting issues around the definitions of terrorism and national security. For the members in question to have held the line on behalf of liberty and to have recognised that the first and safest port of call for this country is openness and transparency and that all else follows from there is a credit to the individuals involved. Politically, in hindsight, it has not helped their careers, but they can put their heads on their pillows at night and have very clean consciences that they have done some very good work for the people of Australia and for the future of this country.
Likewise, from a government perspective and the executive in question it is always hard to introduce legislation that provides greater access to the decision-making processes within a government executive, so hats off to this government for actually doing it rather than just talking about it. This is a substantial step and, conceptually, it is a sensible move as we try and strike the balance between those definitions of freedoms and national security and terrorism
From a constituency point of view this is important. I know it might not be very exciting for those in the House but I want to read the first four paragraphs of the explanatory memorandum because this will be an issue of discussion at community level; therefore, this is a valuable response and the explanatory memorandum is a good summary. If you will bear with me, I do want to read it. It states:
The Independent National Security Legislation Monitor Bill 2010 … establishes the position of the Independent National Security Legislation Monitor … The establishment of the Monitor is consistent with recommendations made by the Security Legislation Review Committee in June 2006, the Parliamentary Joint Committee on Intelligence and Security in December 2006 and September 2007, and the Inquiry by the Hon. John Clarke QC into the Case of Dr Mohamed Haneef.
The standing function of the Monitor will be to review the operation, effectiveness and implications of the counter-terrorism and national security legislation and report his or her comments, findings and recommendations to the Prime Minster, and in turn Parliament, on an annual basis. As well, the Monitor must consider whether Australia’s counter-terrorism and national security legislation contains appropriate safeguards for protecting individuals’ rights, remains proportionate to any threat of terrorism or threat to national security, or both, and remains necessary. The Monitor must also assess whether Australia’s counter-terrorism or national security legislation is being used for matters unrelated to terrorism and national security.
The main purpose of the Bill is to ensure the counter-terrorism and national security laws operate in an effective and accountable manner, are consistent with Australia’s international obligations, including human rights, counter-terrorism and international security obligations, and help to maintain public confidence in those laws.
The review of the counter-terrorism and national security legislation will concentrate on the legislation which has been used or considered during the reporting year so that the review can take into account the operational and judicial experience with the legislation. In reviewing the legislation, the Monitor must have regard to Australia’s international obligations and the agreed national counter-terrorism arrangements between the Commonwealth, States and Territories.
I read that because I like it. I read it because it is worthy of generating public discussion and it is a very good summary of the point and the proposed intent of the legislation. Having read it, I do want to make some points about the detail because, whilst this is excellent, in layman’s terms the proof will be in the pudding. The proof will be in its use and application, and that is always where the tricks begin within the ranks of government regardless of whichever political persuasion holds office in this place. This is, I might add, in the comments that I am going to make as much a call to arms for the Public Service generally as it is for the majority governments of the day.
This legislation can be read very widely. Reporting to the parliament is a fantastic principle, for example, and there should be more of it, I say, in the general running of business in Australia. But, when we dig down to some of the clauses about how this annual report is going to be constructed and some of the issues that may fall outside that reporting process, I think the job is not done in regard to the vigilance of liberty, the principles I talked about before and making sure government is true in accounting for its use of powers on an annual basis.
I refer to clause 29(3), which talks about the restrictions in annual reporting. I quote:
Subclause 29(3) restricts the nature of what the Monitor may publish in the annual report … This would exclude from the annual report any operationally sensitive information or information that would or might prejudice Australia’s national security or the conduct of Australia’s foreign relations or the performance by an agency of its functions or may endanger a person’s safety.
It also excludes information obtained from cabinet documents and information that would disclose government’s deliberations or decisions. As someone reading this legislation today, I can accept that, but with these powers, at the time when decisions are being made about difficult issues in regard to the release of information, it is going to be a watching brief to see how these laws are applied. I would urge the Attorney-General in the chair and his department generally to read as widely as possible the definitions that will be contained around some very nice conceptual ideas in this legislation. This will be a battle of definitions in how this is applied in the future.
If this is read as widely as possible, Australia is stronger because of it. Yes, there may be short-term, thorny, difficult political implications in release of information or an uncomfortableness around the truth of an issue being revealed, but in the long term we are stronger if this legislation and the role of the monitor are allowed to be as broad as possible in the definitions in this document, because if they are tight then we are going to be presented on an annual basis with an incredibly skinny document. We could rule out just about anything under clause 29(3), and I would hope that in the future that is not the case. I really hope the intent of the government is to deliver liberty and deliver on behalf of the Australian community in regard to reviewing, on an annual basis, this difficult tension in what it is to provide government safeguards on behalf of national security and how that sits alongside individual rights, freedoms and liberties. So it is important conceptually, and I therefore hope it remains important in practice.
I know I have been banging on about definitions, and I would hope no-one turns around and points to really obvious cases of terrorism—for example, to say to me, ‘You’re kidding yourself; it’s obvious.’ September 11, for example, was raised before. I think that is a no-brainer for all of us. This will be played out in the grey—in those boundaries of the grey—and that is where I hope there is plenty of focus from government in the delivery of this legislation.
I want to finish with one example of the grey that presented itself to me last week. We had the Indonesian President here last week, and as part of that there were all sorts of people with an interest in Indonesian-Australian relations floating around this building. One fellow I ran into was a guy called Clinton Fernandes. Clinton was the principal policy analyst for the East Timor desk between 1988 and 1989. He has seen all the documents. He knows the story. Yet even today he is before the administrative decisions tribunal trying under the Archives Act to see the release of documents from that period which in his eyes are not sensitive. I cannot do a ruling on that, and it is very difficult for any of us to pass judgment, but here is someone who has seen them and who says there is only one document that should be classified; the rest are publicly uncomfortable, but only one is a national security issue. Yet, 35 years after the incidents in regard to the independence of East Timor, an individual in the Australian community is still taking on government over a very unusual act, the Archives Act, to try and see the release of documents so the truth can be told.
I ask this House: why should one individual have to go through that process when we have a 30-year rule? I hope, as is the intent of this legislation, that there is a desire for the truth to be told and for as much information as possible to be in the public domain so the truth can be told. Let the politics sort itself out from there. But unfortunately we continue to see examples of this. I raise that as an example of the grey. Is this guy, in the eyes of this place, a terrorist? I certainly hope not. Is he a whistleblower? I hope so. Is he, somewhat ironically, demonstrating in taking on government what I hope the intent of this legislation is from government in being open and transparent with the community?
So the definitions are important in this, and the grey is where the action is. I therefore will continue to watch, and I hope this House and the people of Australia watch, because that is the best we can do in relation to how, in administrative law, government answers the many, many definitional questions, not only in clause 29(3) but throughout the document. If you as a government define widely, I take my hat off to you; Australia will be a stronger place and I am sure that not only today but for many years to come we will see that success still has many fathers. All the various members of this chamber will say, as a compliment to those that actually drafted it, that this is their piece of legislation. I wish the government luck in its application. I hope the monitor who is appointed is someone of eminence, and I hope they are given a wide-ranging use of their powers. We are stronger if the government allows that.
in reply—First of all, I would like to thank everybody who has participated in the debate on the Independent National Security Legislation Monitor Bill 2010. The government in the Senate have made a number of amendments to the bill in response to recommendations made by the Senate Finance and Public Administration Legislation Committee. I thank the committee and the Senate for their valuable contribution to the bill.
Since 2001 a number of incidents have served to remind us that Australia is not immune from the threat of terrorism. Terrorism is a heinous crime. The consequences of a terrorist attack in Australia are likely to be severe in not only the damage and destruction, the loss of life and the maiming that would occur but what it would do to our social fabric and our tolerant multicultural community. Accordingly, Australia now has a highly developed legal framework reflecting the seriousness of terrorism related activity. This framework is and must remain a key component in Australia’s counterterrorism strategy.
This legal framework provides Australian law enforcement and intelligence agencies with appropriate tools to deter, investigate, apprehend and prosecute perpetrators of terrorism and other threats to national security. Australia has moved beyond the immediate response phase to the threat of terrorism following the attacks of 11 September 2001. The government is committed to ensuring this legal framework is robust enough to be able to adapt to future events and developments, and also incorporates appropriate review mechanisms to ensure the full suite of counterterrorism and national security laws remain necessary and effective.
The bill establishes the independent National Security Legislation Monitor. The monitor will ensure that the laws underpinning Australia’s counterterrorism and national security regime are effective as the threat to Australia’s national interests evolve. Importantly, the impartiality and independence of the monitor will strike a necessary balance between the need to prevent terrorism activities from threatening Australia’s way of life and the need to protect our individual rights and liberties.
There has been considerable debate on the bill and I take this opportunity to thank all members for their general support for the bill. I note that many have made constructive comments, including the member for Lyne, who spoke immediately before me. I also take this opportunity to clarify one matter to do with the role of the monitor which a number of members have touched upon in their speeches on the bill. Some members have commented about the monitor’s ability to examine any laws, not just those that have been used, and suggested that it is ambiguous in the bill. We do not believe that is the case and my comments will clarify it.
There is nothing in the bill that precludes the monitor from looking at any of Australia’s counterterrorism and national security legislation, as defined in the bill. Clause 9 of the bill provides that the monitor must give particular emphasis to the provisions of the legislation that have been applied, considered or purportedly applied during that financial year or the immediately preceding financial year. While emphasis must be given to the legislation that has been used recently, this is simply a matter of efficiency and practicality. In other words, it is prioritising but not prescriptive.
The emphasis reflects the fact that it will generally be of most value for the monitor to consider legislation that has been used, as the monitor will be able to consider how the legislation has operated in practice as opposed to purely hypothetical scenarios about how the legislation might operate. It does not prevent the monitor from looking at any laws because, as the member for Kooyong has indicated, this may well be necessary in the monitor’s role of determining whether laws remain necessary.
I should indicate that the title of the bill, as I noted in the second reading speech, deliberately includes the term ‘independent’. The monitor will be accountable through the processes of the Department of the Prime Minister and Cabinet rather than the Attorney-General’s Department because of the fact that I am responsible for the operation of the better part of the national security laws. This is just an example of one mechanism but the specific provisions of the statute obviously apply to ensure that independence.
In conclusion, I would like to thank all members again for their contributions to the bill. The bill reflects the government’s commitment to ensure that Australia has a strong counterterrorism and national security legal framework that protects the security of Australians while preserving the values and freedoms that are part of the Australian way of life. I commend the bill to the House.
Question agreed to.
Bill read a second time.