Petro Georgiou (Kooyong, Liberal Party) Share this | Hansard source

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.

and—

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.

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