Robert Oakeshott (Lyne, Independent) Share this | Hansard source

I welcome the Independent National Security Legislation Monitor Bill 2010 as a form of push back by capital L Liberty. We have seen over the last decade too many of our rights and freedoms as individuals and as a society lost in this global definitional battle around concepts such as terrorism, national security, safeguards and freedom. Conceptually, this is an important piece of legislation. I note, listening to many of the speakers, that success has many fathers. It is a compliment to those who write legislation when both sides of this chamber want to claim it as their baby.

The former speaker, the member for Flinders, made reference to several on the coalition side. I fully endorse his comments, in particular those comments about the members for Kooyong and Pearce, who I can say I now know personally. I fully respect the position they have taken on these issues for a long time through some very difficult times when a government of the day was faced with some very confronting issues around the definitions of terrorism and national security. For the members in question to have held the line on behalf of liberty and to have recognised that the first and safest port of call for this country is openness and transparency and that all else follows from there is a credit to the individuals involved. Politically, in hindsight, it has not helped their careers, but they can put their heads on their pillows at night and have very clean consciences that they have done some very good work for the people of Australia and for the future of this country.

Likewise, from a government perspective and the executive in question it is always hard to introduce legislation that provides greater access to the decision-making processes within a government executive, so hats off to this government for actually doing it rather than just talking about it. This is a substantial step and, conceptually, it is a sensible move as we try and strike the balance between those definitions of freedoms and national security and terrorism

From a constituency point of view this is important. I know it might not be very exciting for those in the House but I want to read the first four paragraphs of the explanatory memorandum because this will be an issue of discussion at community level; therefore, this is a valuable response and the explanatory memorandum is a good summary. If you will bear with me, I do want to read it. It states:

The Independent National Security Legislation Monitor Bill 2010 … establishes the position of the Independent National Security Legislation Monitor … The establishment of the Monitor is consistent with recommendations made by the Security Legislation Review Committee in June 2006, the Parliamentary Joint Committee on Intelligence and Security in December 2006 and September 2007, and the Inquiry by the Hon. John Clarke QC into the Case of Dr Mohamed Haneef.

The standing function of the Monitor will be to review the operation, effectiveness and implications of the counter-terrorism and national security legislation and report his or her comments, findings and recommendations to the Prime Minster, and in turn Parliament, on an annual basis. As well, the Monitor must consider whether Australia’s counter-terrorism and national security legislation contains appropriate safeguards for protecting individuals’ rights, remains proportionate to any threat of terrorism or threat to national security, or both, and remains necessary. The Monitor must also assess whether Australia’s counter-terrorism or national security legislation is being used for matters unrelated to terrorism and national security.

The main purpose of the Bill is to ensure the counter-terrorism and national security laws operate in an effective and accountable manner, are consistent with Australia’s international obligations, including human rights, counter-terrorism and international security obligations, and help to maintain public confidence in those laws.

The review of the counter-terrorism and national security legislation will concentrate on the legislation which has been used or considered during the reporting year so that the review can take into account the operational and judicial experience with the legislation. In reviewing the legislation, the Monitor must have regard to Australia’s international obligations and the agreed national counter-terrorism arrangements between the Commonwealth, States and Territories.

I read that because I like it. I read it because it is worthy of generating public discussion and it is a very good summary of the point and the proposed intent of the legislation. Having read it, I do want to make some points about the detail because, whilst this is excellent, in layman’s terms the proof will be in the pudding. The proof will be in its use and application, and that is always where the tricks begin within the ranks of government regardless of whichever political persuasion holds office in this place. This is, I might add, in the comments that I am going to make as much a call to arms for the Public Service generally as it is for the majority governments of the day.

This legislation can be read very widely. Reporting to the parliament is a fantastic principle, for example, and there should be more of it, I say, in the general running of business in Australia. But, when we dig down to some of the clauses about how this annual report is going to be constructed and some of the issues that may fall outside that reporting process, I think the job is not done in regard to the vigilance of liberty, the principles I talked about before and making sure government is true in accounting for its use of powers on an annual basis.

I refer to clause 29(3), which talks about the restrictions in annual reporting. I quote:

Subclause 29(3) restricts the nature of what the Monitor may publish in the annual report … This would exclude from the annual report any operationally sensitive information or information that would or might prejudice Australia’s  national security or the conduct of Australia’s foreign relations or the performance by an agency of its functions or may endanger a person’s safety.

It also excludes information obtained from cabinet documents and information that would disclose government’s deliberations or decisions. As someone reading this legislation today, I can accept that, but with these powers, at the time when decisions are being made about difficult issues in regard to the release of information, it is going to be a watching brief to see how these laws are applied. I would urge the Attorney-General in the chair and his department generally to read as widely as possible the definitions that will be contained around some very nice conceptual ideas in this legislation. This will be a battle of definitions in how this is applied in the future.

If this is read as widely as possible, Australia is stronger because of it. Yes, there may be short-term, thorny, difficult political implications in release of information or an uncomfortableness around the truth of an issue being revealed, but in the long term we are stronger if this legislation and the role of the monitor are allowed to be as broad as possible in the definitions in this document, because if they are tight then we are going to be presented on an annual basis with an incredibly skinny document. We could rule out just about anything under clause 29(3), and I would hope that in the future that is not the case. I really hope the intent of the government is to deliver liberty and deliver on behalf of the Australian community in regard to reviewing, on an annual basis, this difficult tension in what it is to provide government safeguards on behalf of national security and how that sits alongside individual rights, freedoms and liberties. So it is important conceptually, and I therefore hope it remains important in practice.

I know I have been banging on about definitions, and I would hope no-one turns around and points to really obvious cases of terrorism—for example, to say to me, ‘You’re kidding yourself; it’s obvious.’ September 11, for example, was raised before. I think that is a no-brainer for all of us. This will be played out in the grey—in those boundaries of the grey—and that is where I hope there is plenty of focus from government in the delivery of this legislation.

I want to finish with one example of the grey that presented itself to me last week. We had the Indonesian President here last week, and as part of that there were all sorts of people with an interest in Indonesian-Australian relations floating around this building. One fellow I ran into was a guy called Clinton Fernandes. Clinton was the principal policy analyst for the East Timor desk between 1988 and 1989. He has seen all the documents. He knows the story. Yet even today he is before the administrative decisions tribunal trying under the Archives Act to see the release of documents from that period which in his eyes are not sensitive. I cannot do a ruling on that, and it is very difficult for any of us to pass judgment, but here is someone who has seen them and who says there is only one document that should be classified; the rest are publicly uncomfortable, but only one is a national security issue. Yet, 35 years after the incidents in regard to the independence of East Timor, an individual in the Australian community is still taking on government over a very unusual act, the Archives Act, to try and see the release of documents so the truth can be told.

I ask this House: why should one individual have to go through that process when we have a 30-year rule? I hope, as is the intent of this legislation, that there is a desire for the truth to be told and for as much information as possible to be in the public domain so the truth can be told. Let the politics sort itself out from there. But unfortunately we continue to see examples of this. I raise that as an example of the grey. Is this guy, in the eyes of this place, a terrorist? I certainly hope not. Is he a whistleblower? I hope so. Is he, somewhat ironically, demonstrating in taking on government what I hope the intent of this legislation is from government in being open and transparent with the community?

So the definitions are important in this, and the grey is where the action is. I therefore will continue to watch, and I hope this House and the people of Australia watch, because that is the best we can do in relation to how, in administrative law, government answers the many, many definitional questions, not only in clause 29(3) but throughout the document. If you as a government define widely, I take my hat off to you; Australia will be a stronger place and I am sure that not only today but for many years to come we will see that success still has many fathers. All the various members of this chamber will say, as a compliment to those that actually drafted it, that this is their piece of legislation. I wish the government luck in its application. I hope the monitor who is appointed is someone of eminence, and I hope they are given a wide-ranging use of their powers. We are stronger if the government allows that.

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