Senate debates

Thursday, 16 August 2018


Counter-Terrorism Legislation Amendment Bill (No. 1) 2018; Second Reading

11:01 am

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | Hansard source

This bill, the Counter-Terrorism Legislation Amendment Bill (No. 1) 2018, continues the slow, zombie shuffle into authoritarianism in this country. It joins the over 200 pieces of legislation that have been passed in the last 20 years in state, territory and Commonwealth parliaments that erode fundamental rights, freedoms and liberties in Australia. These are rights and freedoms that we have sent our people overseas to fight and die to protect and enhance over many decades. We are now trading them away with absolutely no reasonable argument that in doing so we are making our community any safer. That's why the Greens have consistently advocated for a counterterrorism white paper so that the arguments can be advanced, considered and assessed as to whether or not these erosions of fundamental rights and freedoms, which are ongoing and accelerating in our country, are doing as the bipartisan Labor and Liberal parties in this place are claiming—that is, making our community safer.

But it's not just legislation that's having a chilling effect on our democracy. We've seen decisions like the one taken recently by the Attorney-General to charge Mr Bernard Collaery and Witness K with conspiracy, a decision that will have a chilling effect on our democracy and the capacity of citizens in Australia to hold a government to account for its actions. That was a disgraceful decision. The Attorney-General has attempted to pass responsibility for it to the DPP, but ultimately this was a political decision made at the political level by the Attorney-General to charge Mr Collaery and Witness K. In fact there is a very strong argument that the crime here was committed by representatives of the government when they made the decision to bug the East Timorese government in an attempt to defraud Timor-Leste of its rights over the Timor Sea oil and gas fields. That's why—and I want to acknowledge Senator Patrick for his leadership role here—a number of us have referred that matter to the Australian Federal Police, because to the best of our knowledge there was never an investigation made into whether or not the decision to bug the Timor-Leste government was a crime. I believe it was a crime, I believe it went right to senior levels in government and I believe that those people who were involved in that crime need to be held to account for their actions.

This piece of legislation effectively rolls over a piece of legislation that otherwise would have sunsetted on 7 September 2018. Of course, the Standing Committee for the Scrutiny of Bills did raise significant concerns regarding this bill's trampling of personal rights and liberties and noted that those measures were originally introduced on the basis of being a temporary response to an emergency situation. I would argue strongly that the emergency situation no longer exists, and yet this oppressive authoritarianism marches on in Australia. There are countries around the world which are debating loudly, in the public domain, the slow march to fascism, but that's not a debate that's happening to a meaningful degree in our country. We see this ongoing erosion of the rule of law and of fundamental rights and freedoms—which are part of what actually sets us apart from the people that many call terrorists—without proper checks and balances, only assessed through the closed shop of the Parliamentary Joint Committee on Intelligence and Security, which is just a bipartisan closed shop; there is no representation from the crossbench on that committee. And when we see this ongoing march towards authoritarianism, totalitarianism and ultimately, unless we put the brakes on, a fascist state in Australia, we all ought to be very concerned. I say to both the parties that get together behind the closed doors of the Parliamentary Joint Committee on Intelligence and Security: I truly believe history will judge you very harshly for the decisions that you make in the name of public safety and counterterrorism.

This bill deals with two main areas—preventive detention orders and declared areas. In regard to preventive detention orders, I understand that federal law enforcement agencies have yet to use the preventive detention order powers, despite having had the power to do so for a decade. It's important to place on the record that these powers run contrary to the rule of law. They run contrary to the presumption of innocence and they undermine basic rights and freedoms in this country. We've seen no real evidence that these measures make our community any safer, and the government is continuing to fail in its argument for such measures. They have to be seen for what they are: a power grab from a power-hungry government within a police state, cheered on by the Labor Party. While most people read George Orwell's Nineteen Eighty-Four as a warning, Peter Dutton read it as a blueprint.

The declared areas part of this legislation is another example of legislation that in effect presumes guilt without evidence. A prosecution need not establish proof of intent to engage in terrorist activities. We're very concerned about this. Those concerns are shared by Professor George Williams and Dr Nicola McGarrity of the University of New South Wales, and those concerns are on onus of proof, the fact that defences are too limited and the fact that legitimate reasons such as religious pilgrimage, conducting business or commercial transactions or visiting friends are ignored.

As I've said before, the Australian control order regime is, in broad terms, based on the UK model. But there's a big difference between Australia and the United Kingdom: the United Kingdom has protections in terms of the Human Rights Act. Australia remains the only liberal democracy in the world that does not have some form of charter or bill of rights, and that's why the Australian Greens will soon be moving for an inquiry into the form that such a charter of rights should take in Australia and which rights should be protected and enshrined. It's not good enough that we remain the only liberal democracy in the world that doesn't respect civil liberties and human rights enough to enshrine them in some way in law.

This government, as I have said, has consistently failed to make the case for the ongoing erosion of rights and freedoms in our country. Again, we in the Australian Greens have consistently argued for not only a charter of rights but also a counterterrorism white paper so that we can assess on a strategic and holistic basis whether or not this ongoing erosion of civil and human rights and freedoms in Australia in the name of counterterrorism is proportional, whether it's warranted, whether the government's made the case, whether Labor has made the case and whether, in fact, this ongoing erosion of rights and freedoms is making us any safer whatsoever. But the government won't do that, despite the fact that we've been calling for it for a while and despite the fact that there has been a counterterrorism white paper in the past. The argument that's put against a counterterrorism white paper, which is that this is a rapidly evolving strategic environment, doesn't stack up. Yes, it is a rapidly evolving strategic environment, but what we need is a living, breathing, evolving white-paper process so that our strategic considerations of how we respond to threats to our community can actually evolve as those threats increase, diminish or change.

We take no comfort at all from the government's assertion that control orders will only be invoked in limited circumstances. History is replete with powers being created for one specific purpose that, down the track, become normalised and used by subsequent governments for a range of other purposes. The danger here is that control orders could become a new normal, and that's particularly true when you fit this piece of legislation into the ongoing and continuing erosion of civil and human rights in Australia.

The Parliamentary Joint Committee on Human Rights has reported three times in relation to this legislation and continues to raise concerns about it. I want to place on the record that the Parliamentary Joint Committee on Human Rights most recently, on 26 June, continued to, in its own words, 'raise serious concerns about the compatibility of the regime with human rights'. Clearly, this bill engages and limits a number of fundamental rights—rights that Australia has signed up in international treaties and protocols to protect and defend. Again, it's the view of the Australian Greens that the government has abjectly failed to make the case around the necessity of those limitations or, in fact, whether those limitations are reasonable and proportionate.

We will be opposing this legislation on the basis that the government has abjectly failed to make the case; on the basis that the government continues to refuse to engage in a process like a white paper on counterterrorism so that it gets an opportunity not only to try and make the case but also to be held to account for any failures to make the case; on the basis that this has only been subjected to an inquiry in the closed shop of the Parliamentary Joint Committee on Intelligence and Security; and on the basis that this continues the slow zombie shuffle into authoritarianism in our country.


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