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

The Greens will not be supporting this legislation. Just so that everyone is clear: this is the bill that today has been exempted from the cut-off order, which means it is able to be debated sooner than it otherwise would have been. It is also the bill that is not able to be examined by the Legal and Constitutional Affairs Legislation Committee, on which I represent the Australian Greens. Frankly, both of those things are an utter disgrace given that this is a bill that creates new coercive powers for our security apparatus in this country and continues the ongoing erosion of rights, freedoms and liberty in Australia that has seen us already become an authoritarian and police state and risks us becoming a totalitarian regime down the track. Remember that this is a country where apparently it is just fine for somebody to be charged, sentenced and imprisoned in total secrecy. This is now a country where you can be imprisoned for something you might do in the future. This is Orwellian, draconian stuff that we are talking about here, and this bill is yet another step down a dark and dangerous path for our country.

This has been rammed through parliament—or will be shortly—within a week. This bill retrospectively validates potentially unlawful actions by the Australian Criminal Intelligence Commission and significantly broadens the coercive powers of the Australian Criminal Intelligence Commission board to determine an investigation or operation as a special operation or investigation. Let me remind colleagues that this retrospectivity and increasing of powers is for a law enforcement agency that already has coercive powers similar to those of a royal commission—powers that undoubtedly impact on the freedoms and liberties of citizens of our country, who, unlike people living in any other liberal democracy in the world, are not protected by a charter or a bill of rights.

On the retrospectivity of this bill, retrospective laws are, quite properly, widely considered to be inconsistent with the rule of law, particularly when applied to punitive legislation. That is why the Greens have traditionally opposed legislative retrospectivity. It's worth quoting former British High Court judge Lord Bingham on retrospectivity in our laws who said:

… you cannot be punished for something which was not criminal when you did it, and you cannot be punished more severely than you could have been punished at the time of the offence.

But that's exactly what the government is doing here. As it rams these laws through parliament in less than a week, without giving senators the opportunity to properly consult on this legislation and without giving the Legal and Constitutional Affairs Legislation Committee an opportunity to conduct an inquiry so that we can hear from stakeholders on these matters, we're retrospectively validating investigations by the Australian Criminal Intelligence Commission ahead of a High Court challenge to its coercive powers. In other words, this bill will validate decisions which are probably unlawful which were made by the Australian Criminal Intelligence Commission.

Let's be clear about this: if our security agencies do something unlawful, they should pay the price. And it's very interesting to note the difference between the way the government responds—and, in fact, the way the Labor Party responds—to a potentially unlawful action of the Australian Criminal Intelligence Commission compared with what happened to Bernard Collaery and Witness K. Of course, those two patriotic Australians, who revealed certainly unlawful activity in the form of the illegal bugging of the Timor-Leste cabinet discussions around negotiations with Australia about petroleum resources in the Timor Sea, now find themselves enmeshed in the legal system. Witness K has pled guilty. Mr Collaery has pleaded not guilty and will be tried in secret for actually engaging in a patriotic revelation of unlawful activity. But, because the patriotic revelations of Mr Collaery and Witness K did not suit the agenda of the major parties, they find themselves in court. When you have revelations of almost certainly unlawful activities that do suit the government's agenda—and the Labor Party's agenda, because it wants these powers, of course, when it gets into government—what happens then? Legislation is rammed through this parliament that retrospectively validates and makes lawful those actions. What a disgrace! I have to ask myself: what sort of country are we living in today?

For the Labor Party to come in here and say, 'It's all going to be fine because the minister has promised a review,' is akin to what happened yesterday, with Labor announcing the moving of amendments to the encryption legislation. Labor's trying to make a big song and dance of cuddling up to the tech sector. I remind Labor: you voted for that bill before the last election. You actually voted for it. So don't come in here now, wringing your hands and moving amendments which you know are doomed to failure in this parliament just to try and make yourself look good to the tech sector. You abandoned the tech sector in the last term of the parliament and, mark my words, the tech sector will not forget that.

In regard to this legislation, earlier this week, the Law Council President, Mr Arthur Moses, said:

If there have been breaches of the law by government agencies, then it would be odd and inappropriate for Parliament to validate those breaches as there would not be any deterrent for government agencies in the future who breach laws passed by the very same Parliament.

I couldn't agree more with Mr Moses. As an extension to what he said, I will describe the bill we're currently debating in this way: this is basically greenlighting future unlawful activities by our security agencies in this country, because they know that if they get busted then the major parties are going to come together and make those unlawful actions lawful retrospectively. That's what we're dealing with here, and it's a pathway to totalitarianism in Australia.

This bill will afford the already extremely powerful Australian Criminal Intelligence Commission increased powers to authorise investigations. Where the ACIC board currently needs demonstrable cause for authorising an investigation—in other words, circumstances established on the facts of the matter—under this legislation the board may authorise an investigation if it considers it in the public interest on the basis of its collective experience. Well, to quote from one of my favourite Australian movies, The Castle, 'It's the vibe of it, your Honour'. It's the vibe of it! That's all the ACIC board will have to do to convince themselves in the future that they ought to authorise an investigation: if the vibe feels right. What is happening in Australia at the moment is absolutely horrendous.

What's more, a determination made under this bill will not be a legislative instrument. That means that investigations authorised by the board, with its newly broadened powers, will no longer be subject to a parliamentary review. So here we go again, being frogmarched down the road to a police state. And the government is doing this, as ever, cheered on by the gutless wonders in the Australian Labor Party.

This draconian bill should have been sent to a parliamentary committee inquiry but, unfortunately, that will not now occur. So all those people and stakeholders who are concerned about being frogmarched down the road to a totalitarian regime in this country have been denied the opportunity to have a say. We could have referred it to the parliamentary committee from the floor of this Senate, but Labor won't support us doing that, so of course we don't have the numbers. This is because, as Labor often does, they got a private briefing. They've been convinced to support it on the basis of the old straw man argument of national security.

Yet just yesterday, as we debated medevac, Labor argued that the Senate couldn't and shouldn't vote in support of a bill when it hadn't been allowed to consider all of the information relevant to that bill. That was actually a good argument that Labor put yesterday, and an accurate argument. So what's happened today? Labor has turned around and is supporting a piece of legislation which increases coercive powers, which undermines freedom and liberty in this country, and which the Senate has not had an opportunity to come to grips with because we've been denied an inquiry at the Legal and Constitutional Affairs Legislation Committee.

As for the Greens, we didn't ask for a briefing on this bill because we don't need one: we know a dog when we see it. The crossbench, unfortunately, can't block the bill, so let me use this opportunity to once again make the case for a charter of rights in Australia. Many of our ancestors, including mine, fought and—in the case of many of them, including mine—died in wars to protect freedom and to protect liberty. They would be rolling in their graves today as they watch the unseemly haste with which the major parties erode those freedoms and those liberties that so many of our ancestors died to protect.

We need a charter of rights in Australia. Every other one of the Five Eyes countries and every other liberal democracy in the world, and many countries that aren't liberal democracies, have a charter of rights or a bill of rights either legislated or constitutionally enshrined. So far this century, which is not yet two decades old, we have seen well over 200 pieces of legislation passed through parliaments in Australia that erode or remove fundamental rights and freedoms, and they've almost all been delivered by the major parties voting in lock step because of their uncritical bipartisanship on national security matters and because they actually don't care about fundamental rights and freedoms in Australia.

What we've witnessed here today in this Senate are secret deals being made to pass legislation that is an undermining of our very democracy. What we are witnessing is not the hallmark of a thriving and robust democracy; it is the hallmark of authoritarianism. We're well overdue for a charter of rights, and it's about time those elected to this parliament by Australian people concern themselves with a charter of rights and the ongoing erosion of fundamental rights and freedoms. The Greens will stand up for the rule of law, which is being trashed by this legislation today.

The Liberal Party, which claims as one of its foundation values personal freedoms and personal liberties, is going to trash personal freedoms and personal liberties for the umpteenth time. I have lost count of the number of times the authoritarians and the totalitarians in the LNP have done this in contravention of one of their foundation values, just as I've lost count of the number of times the Labor Party has cravenly rolled over and allowed the LNP to tickle its tummy. It's time for this so-called bipartisanship on national security to come to an end. It's time for legislation such as this not to be rammed through the Senate as it denies us the opportunity to come to grips with the details and consult stakeholders. And, ultimately, it is time for a charter of rights in Australia.