Thursday, 13 November 2008
Independent Reviewer of Terrorism Laws Bill 2008 [No. 2]
Debate resumed from 23 June, on motion by Senator Troeth and Senator Humphries:
That this bill be now read a second time.
I introduced the Independent Reviewer of Terrorism Laws Bill 2008 [No. 2] on 23 June and I am delighted to be able to further the process. The one-off Security Legislation Review Committee, the Sheller committee, was established in 2002 and reported in 2006 with its first recommendation being to establish a mechanism for an independent reviewer. This was examined in detail and endorsed unanimously by the Parliamentary Joint Committee on Intelligence and Security in September 2007. Now it is time for this bill, the outline of which was given in my earlier speech.
The bill was examined in detail by the Senate Standing Committee on Legal and Constitutional Affairs and several recommendations were made in their report. I am pleased to re-introduce the bill with amendments, which I will detail in the committee stage. Broadly speaking, these amendments undoubtedly enhance the capacity of the independent reviewer as an instrument to ensure that our laws relating to terrorism are effective, are consistent with fundamental legal principles and human rights obligations, and do not have undesirable impacts. I appreciate the great contribution made by those who responded so promptly to the committee’s request for evidence about the bill, and the strong community support for the measure is striking. I appreciate the committee’s thorough examination of the measure. It is noteworthy that the committee’s support for the establishment of this position was strong and unanimous. So members of all parties believe that it is a necessary position. The committee members expressly endorsed the opinion of Associate Professor Andrew Lynch as providing the concise and compelling justification for this position to be introduced, and I believe that is worth quoting. He wrote:
First, continuing an integrated examination of how the complex body of anti-terrorism law works enables early identification of inherent problems. Second, it helps to depoliticise the very contentious debates about these laws and their importance overall to national security. Third, it reassures the community that a kind of watchdog exists to report publicly on laws that they fear might be used against them.
He goes on to say that the unanimous support of the committee for the bill in principle and the recommendations to strengthen it echoes the bipartisan support for an independent reviewer and he goes on to quote the two committees that I have mentioned. He said that perhaps at the time that the Joint Standing Committee on Intelligence and Security proposed the independent reviewer position be established there was a sense that it was premature and that it was too soon to assess the actual operation and impact of the laws. Given that some 30 packages of terrorism laws have been passed by the parliament in the last eight years, that is no longer the case and this is a timely and important measure. I hope all senators will support it and I commend the bill to the Senate.
The Greens welcome the Independent Reviewer of Terrorism Laws Bill 2008 [No. 2]. It is a necessary and long-overdue mechanism and should have been introduced when the antiterrorism legislation was enacted, starting in 2001. There are longstanding democratic and legal principles, including the right of judicial oversight, which are undermined by the antiterrorism laws as they stand. This bill proposes to provide a significant safeguard mechanism to laws that currently lack rigorous review and balance.
Some of the laws that we have create substantive offences out of conduct, which in other circumstances would not qualify as conspiracy. People can be found guilty of substantive offences because they are talked about. Careless talk and bad ideas have become crimes, which is worrying in an open democracy. As Senator Troeth has indicated, such a reviewer function has been recommended a number of times by the Sheller review and also by the Parliamentary Joint Committee on Intelligence and Security. I do not think there is any controversy—or I hope there is not—that such a reviewer is urgently called for.
Whilst the office of such a reviewer is necessary and will represent an important safeguard, it should not result in the permanency or legitimising of the antiterrorism laws because some of them are extraordinary powers. Many should have an expiry date and be subject to repeal. With the absence of a charter of rights for Australia or a bill of rights these laws are vulnerable to misuse and abuse, as has been seen in the Mohammed Haneef case, which calls into question how the antiterrorism laws have made Australia a safer place. It was, I think, a pretty serious call for a review of the laws.
The Greens commend the efforts of particular Liberal Party members and senators on the issue, including through the introduction of the bill. It is unfortunate that when a suite of antiterrorism laws were introduced by the former government such a reviewer function was not included. I will foreshadow a number of amendments which the Senate Standing Committee on Legal and Constitutional Affairs inquiry into the bill have provoked. The inquiry yielded very high quality advice from some of the most respected legal minds in the country. In particular I draw your attention to the role of the independent reviewer and its effectiveness, which would be more effective if it is required to consider whether the antiterrorism laws comply with Australia’s human rights obligations. This was the subject of initial amendments, which were moved by Senator Bob Brown, and I will draw your attention to those amendments proposed on sheet 5531. The Greens will not be proceeding with those amendments, but I will speak more about it in the committee stage.
The Greens certainly support the role of the reviewer examining whether the antiterrorism laws are consistent with Australia’s human rights and other international obligations. We also foreshadow a second reading debate amendment which I will move shortly. We highly support the recommendation made by the committee that, to ensure the independence of the review process, we believe it should be a panel of three rather than a single reviewer. That diversity of experience on the panel would probably allow for a more rigorous process in what would be presumably a rather arduous workload.
Finally, I would just like to reiterate that we hold that it is not enough to simply scrutinise the laws. We also measure the continuing need for the laws themselves. Quite a number of them have proved unwise, undemocratic and inconsistent with Australian values and it is time to begin this work. I move Australian Greens amendment (2) on sheet 5638:
At the end of the motion, add:
“but the Senate is of the opinion that it would be more appropriate for the role of independent review of terrorism laws to be carried out by a panel of 3 members rather than a single Independent Reviewer of Terrorism”.
I want to endorse today the comments of Senator Troeth in introducing the Independent Reviewer of Terrorism Laws Bill 2008 [No. 2]. Those of us who serve in this place well understand that the Senate, as a house of review, is a role that is valued by many people in this community. At this particular point in the sitting year the mesh we use to consider legislation becomes a little more coarse, perhaps, than it normally is but, nonetheless, we continue to scrutinise the bills the other place has sent us for inconsistencies, unworkable provisions, unjust terms and generally matters that are at odds with Australian values. In particular, we have a tradition of searching out provisions that diminish or degrade the rights of our fellow citizens. We have done this for a very long time.
Terrorism, of course, has been a fact of life in the world for some time. In Australia, arguably, it arrived in 1978 with the bombing of the Hilton Hotel. Following the terrorist attacks in New York and Washington in September 2001 a number of laws were enacted by the federal parliament to deal with what was seen as an emerging, more serious, terrorist situation. Over 30 pieces of legislation were passed to extend the criminal law and expand the power of intelligence and law enforcement agencies. It has to be acknowledged that appropriate, effective legislation should continue to be a part of any counterterrorism strategy aimed at protecting our citizens and our country. I believe, however, that sometimes during those debates about the armoury against terrorism the mesh in our sieve was too wide. Sometimes, in response to a clear and present danger, we embraced policies more suited to wartime than peacetime.
Australians cherish the fair go. In the case of the criminal law, what that translates to is very clear. It means that there is a rule that you have to be proved guilty, not presumed guilty. It means that you have the right to know what you are accused of and by whom. It means that you have the ability to know where the law stands and how you can use its terms to protect yourself. It requires calling on those who prosecute to account for themselves. In summary, it means the laws protecting all of us are as much shields as they are swords. Some of those 30-odd counterterrorist laws of the last decade may not have met these tests of a fair go. The impulse on which parliaments legislate to head off dangers to its citizens, whatever their source, is an honourable one. But the realisation that parliaments need, from time to time, to erect checks and balances to constrain, however slightly, the enthusiastic exercise of the power to pass laws is also an honourable one.
This bill does not confer the power on anyone to stop parliament from legislating as it sees fit, but it does allow someone, in this case the independent reviewer, to hold up a mirror to parliament so that we can see with greater sharpness than our usual sifting allows just what we have done and whether we might, with the passage of time, reflect that we have done some harm amongst the good. Senator Troeth has outlined the relevant terms of this legislation, and I commend this bill as providing the appropriate mechanism to ensure the necessary level of oversight and review of this important but sensitive tranche of legislation. It will complement the work of parliament, not derogate from it. The appointment of an independent reviewer should provide the community with a high level of confidence that the delicate balance between responding to terrorism and retaining the liberties of which we are proud can and will be maintained.
I note that Senator Wong was next on the speaker’s list, but with the lack of interest in this issue which has been characteristic of the government, she is not in the chamber.
Although the Independent Reviewer of Terrorism Laws Bill 2008 [No. 2] is a private senator’s bill introduced by Senator Troeth and Senator Humphries, I want to indicate on behalf of the opposition that it has the opposition’s support. The principle behind the bill is a protective principle. It is to add to the armoury of parliamentary surveillance another mechanism designed to ensure that counterterrorism laws, which were amended so as to expand the executive and policing power of the state in extraordinary times by introducing into our laws extraordinary measures, are not allowed to become ordinary measures merely by the effluxion of time. Whenever the national security of the state is threatened as, in particular, it was after the events of September 2001 and October 2002, those of us in the Western democracies, and in Australia most particularly, felt that there had been a change in the nature of the threat to our democracy that required a legislative response that extended the policing powers of the state in ways that, in certain respects, had been unfamiliar to the legal tradition of this country.
The government and the parliament were of the view that some traditional protections should be reviewed and the policing function of the state should be extended through devices such as preventative detention and control orders, which were very controversial at the time, in service of the fundamental obligation of governments and parliaments—that is, to protect the public interest. But those of us who remember those debates also remember that the government which introduced them—the Howard government—made it clear that these were extraordinary measures. One of the most disappointing but familiar phenomena we see in parliaments is that laws are passed to deal with unusual circumstances and lie unrepealed on the statute books. Many of the provisions of which I speak were never sunsetted. There was a device of parliamentary review established and there were various other safeguard mechanisms put in place; nevertheless, they were not sunsetted. The mechanism proposed by Senator Troeth’s bill would create an office of independent reviewer of terrorism laws who could bring an objective and detached mind to the question both of the functionality of those laws and the necessity for their continuance. It is very difficult for me to see that that is other than a good initiative, particularly given the extraordinary nature of some of the powers which the laws have conferred. It is, as Senator Humphries has pointed out, a mechanism that has proved beneficial in other jurisdictions.
I was recently in the United Kingdom for the purpose of meeting the national security agencies in that country and looking at the operation of their counterterrorism laws. I met with Lord Carlisle, the independent reviewer of terrorism laws in the United Kingdom, and we had a very long discussion about how he discharged his statutory functions. I also had meeting with various national security agencies, including MI6, the Home Office, the Metropolitan Police Service and others. One of the issues that we canvassed was the utility within the United Kingdom of Lord Carlisle’s function. All of the national security agencies to whom I spoke in the United Kingdom, without breaching the confidentiality of those conversations, I think I am at liberty to say, strongly supported the apparatus of an independent reviewer of terrorism laws, in addition to the parliamentary oversight mechanisms.
Having sat through debates in this chamber and having heard what I thought were evidently at the time sincere protests by members of the now government about the impact these laws would have on the liberty of the subject and on traditional rights and immunities, it is more than passing strange to me to learn today that the government will vote against this bill. The bill in its original form was introduced into the House of Representatives by the member for Kooyong, Mr Petro Georgiou, whose presence in the gallery I acknowledge this afternoon. I am a little biased on this subject because Mr Georgiou is a friend of mine but I think I can say, without fear of contradiction by anyone in this chamber, that there is nobody in Australian public life who has taken a more principled and respected position in relation to the oversight of terrorism laws and the protection of the rights, liberty and immunities of the subject in consequence of the expansion of national security laws than the member for Kooyong. When Mr Georgiou introduced this bill into the House of Representatives last March, the debate was shut down by the government. If you look at the House of Representatives Hansard of 19 March 2008, you see that as soon as Mr Georgiou moved the suspension of standing orders that would enable his bill to be debated he was only able to get out the words ‘on a bipartisan basis’—
Yes, it is so rich with irony, Senator Payne, that that it is beyond the wit of the scriptwriters of The Hollowmen. No sooner had he uttered the words ‘on a bipartisan basis’ than the Leader of the House, the member for Grayndler, Mr Albanese, moved that the member no longer be heard. That is how sincere the Australian Labor Party are about their professed concerns for the liberty of the subject! Mr Albanese’s motion, that Mr Georgiou be no longer heard, was then passed on party lines.
That is why it is of concern to those of us who actually do care about civil liberty. I acknowledge you, Mr Acting Deputy President Humphries, as one of the key participants in these discussions in the days when we were both on the government back bench and we were both participants in the backbench law and justice committee of the Howard government. I note that you and I and Senator Payne and Senator Troeth and others whom I see here strove hard to introduce safeguards into the antiterrorism laws. But there are those of us who mean what we say about this and there are those who only pretend to mean what they say.
I regret the refusal of the Rudd government to contemplate a measure which has worked very satisfactorily in the United Kingdom and would add to the Australian parliamentary apparatus of scrutiny to ensure that there is no overreach of the antiterrorism laws. This is consistent with the attitude of a government which refuses to debate this measure in the House of Representatives and is now determined to vote this bill down in the Senate. It will pass in the Senate, I believe, with the support of the Greens. But as the shadow Attorney-General, I call on the government to revise their position and to show, on this important issue of the liberty, rights and immunities of the individual in relation to this difficult issue of national security, that their actions match their rhetoric.
Mr Acting Deputy President, I apologise for arriving in the chamber after my allotted speaking time but I trust that the chamber will allow me to make a contribution. In relation to the Independent Reviewer of Terrorism Laws Bill 2008 [No. 2], can I raise as to a matter of procedure, and this may have been already raised, some concern that the government has been asked to vote on this bill, depending on what negotiations now occur in relation to procedure, when we did make it clear to both the Greens and the opposition that this bill had not yet gone to caucus. As a matter of courtesy, we had requested that it not be brought to a vote until that had been enabled.
Actually if I could finish, Senator Brandis. I know that you seem to be wanting to demonstrate to everybody your incredible speaking skills today but I am actually on my feet. I have been in this chamber for six years and there have been many occasions on which parties have requested, in terms of a matter being brought to a vote, the ability to go back to their party rooms before that occurred and that courtesy has been extended. We in the government do regret that that courtesy was not extended on this occasion.
I also make the point, Senator Brandis, that, whilst I appreciate the importance that some members accord to this bill, despite your speech about civil liberties your government did not. I note the inclusion of this bill at this time obviously has had consequences for the same-sex reforms, and I have raised those with the crossbenches and the opposition.
It is a case that Labor has a longstanding interest in ensuring Australia’s counterterrorism laws contain appropriate safeguards and review mechanisms. I indicate that one of our government’s high priorities is the maintenance of strong and effective counterterrorism laws. That is one of our highest priorities because of course nothing is more important than ensuring that all Australians are safe and secure. The government is committed to ensuring that strong counterterrorism laws are accompanied by strong safeguards that ensure the laws operate in an accountable manner.
I know that the member for Kooyong and Senators Troeth and Humphries have a well-documented sincere and ongoing interest in this important issue of balance and accountable counterterrorism laws. I note also that this is a position that they held even when they were on this side of the chamber and contrary to the position of some of the members of the then government. I would like to commend them on their contributions to the public debate on these issues, which are central to the proper functioning of our democracy.
It should be recorded that when the coalition were in government they did not respond to the recommendation for an independent reviewer nor to other recommendations made by the Sheller committee or the Parliamentary Joint Committee on Intelligence and Security. I make the point that the coalition government did have ample opportunity to address these issues. The Sheller committee reported in April 2006 and the parliamentary joint committee reported in December 2006. The previous Howard government had these recommendations before it for some 18 months and chose to take no action. I do say that I am sure this is not due in any way to any lack of effort from the member for Kooyong or Senators Troeth and Humphries.
I am also interested that Senator Brandis made the comments that he made today, because I do notice that he was reported earlier this year in a way that suggested he was distancing the Liberal Party from this bill. He was quoted in the Age newspaper as saying that Mr Georgiou had moved this bill ‘in his own capacity, not on behalf of the opposition’.
Mr Acting Deputy President, I rise on a point of order. I am only sensitive about being misrepresented or lied about, Senator Wong. The remarks attributed were merely a description of the procedural manner in which this bill came before the House of Representatives. My support for this bill, as Mr Georgiou, Senator Troeth and Senator Humphries well know, has been consistent since it was first raised with me by Mr Georgiou at the beginning of this year.
I am fine with that. I just wanted that on the record. As I said, Senator Brandis was quoted in the Age newspaper as saying that Mr Georgiou had moved this bill ‘in his own capacity, not on behalf of the opposition.’ People can have their own views as to what Senator Brandis was intending to infer by that. I indicate that the government is committed to ensuring that counterterrorism laws are effective and accountable. We have concerns as to whether this bill is the best way of achieving this. While the aims of this bill are commendable, there are flaws in its approach. For example, the independent reviewer is given a general and non-specific mandate and is free to determine priorities as he or she thinks fit. In our view, this provides little certainty in terms of the reviewer’s responsibilities or purview. There are a number of questions that remain unanswered with the bill. For example, will the reviewer examine all new legislative proposals relating to terrorism and national security, and will he or she examine laws which have been used in each year?
A number of flaws in the bill were recognised by the Senate Legal and Constitutional Affairs Committee, which recommended extensive amendments. The government does believe that the issue of how our counterterrorism laws are to be monitored and reviewed needs careful and comprehensive consideration. Importantly, the establishment of an independent reviewer should be addressed in the context of other recommendations made by the reviews of the counterterrorism laws. It should be remembered that there are a number of outstanding reports which need to be considered: firstly, the one I referred to—the Sheller committee report; secondly, the report of the Parliamentary Joint Committee on Intelligence and Security; and, thirdly, the report of the Australian Law Reform Commission. All of these reports contain numerous recommendations on various aspects of the counterterrorism legislation. As I have previously indicated, the action in response to those reports from the previous government was wanting.
As senators would be aware, the Rudd government has established an independent inquiry, to be headed by the Hon. John Clarke QC, into the case of Dr Mohamed Haneef. Mr Clarke’s terms of reference also include consideration of the counterterrorism legislation involved in that case. Mr Clarke is due to report in the near future, and the government will certainly be considering closely any recommendations he makes. The government has given and continues to give detailed consideration to the recommendations of the reviews of the counterterrorism legislation conducted by Sheller, the PJC and the Australian Law Reform Commission. The government does take these issues seriously. It is important that lessons learnt from the implementation of the laws, cases and investigations, as well as issues identified by reviews into the operation of the legislation, are acted upon to ensure Australia has an effective yet accountable counterterrorism regime.
Many of the aspects of the legislation which were identified by reviews as increasing the accountability of the operation of counterterrorism legislation were included in the legislation only due to efforts by Labor. Our approach, including in opposition, has always been to ensure that Australia has strong counterterrorism legislation that protects the values and freedoms that are part of Australia’s way of life. The government recognise that it is only through effective safeguards and review mechanisms that we are able to ensure this continues to be the case. In opposition we argued for the inclusion of important protections and appropriate safeguards within the counterterrorism legislation and moved amendments to improve safeguards such as greater judicial oversight of the operation of the laws, promoted shorter periods of time for sunset clauses and regular reviews of the operation of counterterrorism legislation. Labor also advocated greater oversight of the use of the counterterrorism laws by law enforcement and security agencies.
The Rudd government understand that is not sufficient to maintain a robust set of counterterrorism laws. We are also determined to ensure that our national security agencies work together as effectively as possible in enforcing those laws. As the Attorney-General has indicated, the AFP, ASIO and the Commonwealth Director of Public Prosecutions are implementing practical recommendations made by the review of interoperability between the AFP and its national security partners, conducted by Sir Laurence Street. The recommendation covers four broad areas: operational decision making, joint task force arrangements, information sharing, and training and education. Significant progress has been made on implementation.
A regular forum has been established to provide the heads of ASIO, the AFP and the Commonwealth Director of Public Prosecutions with an opportunity to regularly review strategic priorities and interoperability issues in national security operations. ASIO and the AFP have put in place a counterterrorism protocol to provide for regular and accountable exchange of national security information and ongoing high-level consultation and operations. ASIO, the AFP and the Commonwealth DPP have developed guidelines for counterterrorism prosecution to improve consultation and communication in the investigation and prosecution of terrorist offences. Other key measures include interagency training and secondment arrangements between the AFP and ASIO. The implementation of the Street review recommendations, as well as the report of the Clarke inquiry into Dr Haneef’s case, will ensure that the lessons learnt from counterterrorism investigations are identified and addressed.
In conclusion, Labor has a longstanding and demonstrated commitment to ensuring Australia’s counterterrorism laws contain adequate safeguards and fulsome review mechanisms. The government will continue this commitment by bringing forward a comprehensive response to the proposal for an independent review of counterterrorism laws and other review recommendations in the near future. We will ensure that there is ample opportunity to debate this issue at that time.
Original question put:
That this bill be now read a second time.
A division having been called and the bells being rung—
Ordered that consideration of this bill in Committee of the Whole be made an order of the day for a later hour.