Linda Kirk (SA, Australian Labor Party) Share this | Hansard source

I rise this afternoon to speak briefly in relation to this matter and to support the comments of my Labor colleagues. Unfortunately, we are unable to support the motion of Senator Nettle to have the list of matters referred to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry. The reason for this is that we believe, as I will outline, that this is a matter that has an appropriate time and place. However, it is not something that ought to be undertaken by the Senate committee.

Extraordinary antiterrorism powers were exercised during the recent case concerning Dr Haneef. These are laws that have been enacted through the parliament over the last five or six years. In fact, it is the case that Australia now has 44 pieces of antiterror legislation that have been enacted since 2001, and there is no question that these laws require maintenance and continual review. The case concerning Dr Haneef was really the first test case in Australia involving the new antiterrorism laws, and Labor has said, quite openly, that there ought to be a judicial inquiry concerning the operation of these laws in relation to Dr Haneef. However, now is not the time for review and the Senate is not the place for that review to take place.

I think it is important to distinguish two matters here: firstly, the matters concerning Dr Haneef, his detention, questioning, being taken into custody, and subsequent release from custody; and, secondly, the wider issue of antiterrorism legislation, more generally, and the need for an ongoing review of that legislation. For the moment, I will just concentrate on the matters that are raised in Senator Nettle’s motion.

As Senator Ludwig said before me, Labor considers that now is not the time for such an inquiry to take place by the Senate. It is, of course, completely inappropriate for us, as legislators, to be involved in reviewing the matter relating to Dr Haneef when there is a criminal investigation currently afoot. As we know, the Australian Federal Police is continuing its investigation in relation to Dr Haneef and, whilst that is occurring, it is not appropriate for the Senate or any of its committees to undertake a concurrent investigation. In addition, the matter relating to the cancellation of Dr Haneef’s visa is also the subject of court proceedings as we speak. Dr Haneef’s legal counsel, of course, have challenged the decision of Minister Andrews to cancel Dr Haneef’s visa and that matter is being heard in the courts currently. So there are two very good reasons as to why the Senate or one of its committees should not be undertaking an inquiry into this matter at this point in time.

Moving on to where such an inquiry ought to take place, Senator Nettle has moved, as I said, that such an inquiry take place by Senate inquiry. Whilst Labor believe that there ought to be an inquiry in relation to the matters surrounding the decisions made by various individuals, ministers and Commonwealth agencies in relation to Dr Haneef, we consider that such an inquiry ought to be conducted by a judicial officer and that the nature of the inquiry should be an independent one. We have said that an appropriate person to chair this judicial inquiry would be, for example, a retired judge of one of the supreme courts or a retired High Court judge. We have said that such an inquiry could canvass the main issues in the case and, in particular, the interaction between the criminal law and migration law, and whether they may be harmonised in some way in order to lift some of the pressure off our law enforcement agencies. But we emphasise that such an inquiry should not take place until the investigation that I referred to earlier by the AFP has been completed.

Moving now on to the broader issue of the review of antiterrorism laws, as other speakers have emphasised, there have in fact been numerous reviews of the antiterrorism laws that currently exist in Australia. One of the primary reviews that took place was the Sheller review that, as I understand, tabled its report in parliament in June 2006. This was a public and independent review. Chaired by Sheller, it reviewed the 2002 package of security legislation, plus the Criminal Code Amendment (Terrorism) Bill 2003. The review was required to be undertaken as soon as practicable after the third anniversary of the commencement of the Security Legislation Amendment (Terrorism) Act and to report to the Attorney-General and to the Parliamentary Joint Committee on ASIO, ASIS and DSD within six months of the review commencing. As I said, the Sheller report, which is a comprehensive review of this legislation, was tabled in the parliament in June 2006.

In the context of additional reviews, it is interesting to note that the Sheller report did recommend that the government establish a legislative based timetable for continuing review of the security legislation by an independent body, such as the Security Legislation Review Committee, to take place within the next three years. The report went on to say:

If an independent reviewer … has been appointed, the review to be commissioned by the Council of Australian Governments (COAG) in late 2010, could be expanded in its scope to include all of Part 5.3 of the Criminal Code.

That recommendation was made by the Sheller review, and it is a matter that the government should consider implementing.

I was interested in and agree with the comments made by Senator Ray earlier this afternoon in which he indicated that in the United Kingdom there is an annual, independently conducted review of antiterrorism laws. He suggested—and I think it is a very good suggestion—that the Attorney-General and the Minister for Justice and Customs look very carefully at what happens in that jurisdiction because we would be wise to adopt a similar approach. Certainly the Dr Haneef matter has indicated that there is need for constant review and scrutiny of our existing laws, particularly in this context, if there is going to be ongoing public confidence in the antiterrorism laws. One of the best ways to ensure that is to have a constant review of the legislation, ideally by an independent body.

Unfortunately, we are unable to support Senator Nettle’s motion. We support the intention behind it, but, in Labor’s view, a Senate inquiry is not the way that we ought to proceed in relation to this matter.