Judi Moylan (Pearce, Liberal Party) Share this | Hansard source

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.

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