George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

I commence the new year with a sense of deja vu, because in speaking to this theNational Security Legislation Monitor Bill 2009 [2010] my mind goes back to 2008 when I addressed remarks to a very similar bill which was introduced as a private senator’s bill by Senator Troeth and Senator Humphries called the Independent Review of Terrorism Laws Bill. They introduced that bill in the Senate after its original sponsor, the member for Kooyong, Mr Georgiou, was gagged by the government in the House of Representatives in seeking to debate the bill in the other place. Indeed, Mr Georgiou had barely uttered the words ‘on a bipartisan basis’ when the Leader of the House, the member for Grayndler, Mr Albanese, moved the gag. So had the Rudd government in 2008 set its face against the opposition’s proposal to establish an independent review of terrorism laws.

Lo and behold, some year and a half later the government has come to the opposition’s point of view and is proceeding with this legislation, which we will support on a bipartisan basis. The Senate was able to be convinced, because the bill was passed in this place, of the value of that legislation and, with the cooperation of the Greens, it was passed in the teeth of opposition from the government at the time. Naturally, the government maintained its negative stance when the first reading of the bill was moved in the House of Representatives on 24 November 2008 and it proceeded no further. So here we are, some 15 months after that debate, nearly two years after Mr Georgiou introduced his bill, the Independent Reviewer of Terrorism Laws Bill 2008, debating the government’s own legislation. I use that expression loosely because it can be hardly said to reflect the government’s own preferences.

The bill comes with a series of amendments, which the opposition will support. These amendments make this bill resemble Mr Georgiou’s bill in almost every respect, much more so than the initial edition of the government’s bill. It is almost two years since Mr Albanese marshalled the numbers to quash Mr Georgiou’s initiative, and quietly the government has adopted Mr Georgiou’s policy as its own.

The key difference between the government’s original bill and the regime proposed by the coalition is the notion of independence. In keeping with the approach of the Rudd government, the bill in its initial form required that the monitor be subject to the direction of the executive, personified by the Prime Minister. Any ad hoc inquiry would have been subject to prime ministerial approval. Any report deriving from it would be both secret, there having been in the initial bill no provision for tabling, and subject to executive micromanagement. Those provisions, I am pleased to say, following the recommendations of the Senate Finance and Public Administration Legislation Committee, have now been abandoned by the government. The government’s amendments address the coalition’s concerns raised in the committee and restore independence, which is central to the concept of this office. The opposition will, therefore, be supporting the amendments and, with the carriage of amendments, will be supporting this bill, which, for all practical purposes, is our own.

As I said in November 2008 in my remarks on the bill introduced by Senators Troeth and Humphries, the principle behind this bill is a protective principle. It is to add to the armoury of parliamentary surveillance another mechanism designed to ensure that the counterterrorism laws, which were amended so as to expand the executive and policing powers of the state in extraordinary times by introducing into our laws exceptional measures, are not allowed to become ordinary measures by the effluxion of time. The government and the parliament were of the view that some traditional protection should be reviewed and the policing functions of the state should be extended through such devices as preventative detention orders and control orders, which were controversial at the time, in the service of the fundamental obligation of governments and parliaments—that is, to protect the public interest.

Those of us who remember those debates also remember that the government which introduced them, the Howard government, made it clear at the time that these were extraordinary measures. This bill introduces an Office of the Independent Monitor, who, we expect, will bring an objective and detached mind to the question of both the functionality of the laws and the necessity for their continuance. This can only be beneficial and it has proven to be beneficial in other jurisdictions.

Mr Georgiou’s bill, on which the government’s bill belatedly is based, was itself inspired by the provisions of the United Kingdom, which created an office of independent reviewer of terrorism laws. In 2008, I travelled to London to meet with the Independent Reviewer of Terrorism Laws, Lord Carlile, with whom I had extensive discussion about the operation of the laws in that jurisdiction. Lord Carlile stressed to me that his independence and his power to conduct inquiries on his own initiative were central to his ability to discharge his functions and to maintain the objectivity required to perform those functions. Then last year, when Lord Carlile visited Australia, he once again met with me, along with Mr Georgiou and Senator Troeth, and we had further conversations which further informed the opposition’s attitude to this legislation.

My own discussions with both Lord Carlile and British national security agencies confirmed in my mind the belief that those agencies strongly supported the apparatus of an independent reviewer of terrorism laws but were also strongly of the view that such an officer would be merely a bureaucrat unless he were genuinely independent of the executive government. That is the fundamental difference between the bill as presented in its initial form and the bill in the form in which it will be amended following the urging of Liberal senators and of the opposition generally. With those amendments, which will entrench the independence of the office, the coalition is confident that the success in the United Kingdom in Lord Carlile’s office can be replicated in Australia. Subject to the amendments, the opposition therefore supports the bill.