Penny Wright (SA, Australian Greens) Share this | Hansard source

  I rise to speak on the G20 (Safety and Security) Complementary Bill 2014 and to highlight the relationship between this bill and the rights of everyday Australians—rights that are crucial but that, until relatively recently, we perhaps have taken for granted, assuming that they will always be there.

The Australian Greens appreciate that this complementary bill is not of itself a draconian piece of legislation. However, it is legislation which is designed to facilitate laws that definitely are draconian, and that is where our concerns lie. This bill operates to clarify the interaction between provisions in the Queensland G20 (Safety and Security) Act 2013 and existing Commonwealth legislation as they apply to the Brisbane Airport during the 2014 G20 Summit, which will be held in November this year.

The Australian Greens cannot in good conscience support this Commonwealth law, because of the nature of the Queensland state law it is designed to facilitate. Supporting this bill would effectively facilitate the erosion of rights by the Queensland government against its own people that has been occurring and will continue to occur around the G20 summit, and would imply that this erosion of rights is acceptable.

This sorry tale goes back to October last year when the Queensland parliament rushed through the G20 (Safety and Security) Act 2013 ahead of the G20 events which will take place later this year. The Queensland legislation embodies extreme laws which do many oppressive things. They strengthen existing police powers of search and arrest; they declare special security areas in Brisbane and Cairns; they create offences for actions like crossing barriers and disrupting meetings; they exclude local people from their very own areas of residence if they fail criminal history checks; and they ban various objects, including household items, from security areas. It might be understandable that they want to ban whips and weapons, but they also ban cans, jars, banners, reptiles and even eggs. These laws have attracted condemnation as both draconian and impractical from many groups, including civil liberties organisations and legal bodies like the Queensland Law Society

As well as these concerns, the federal Parliamentary Joint Committee on Human Rights has considered the Queensland act and notes that it has provisions which potentially engage and limit multiple human rights, many of which we, as a nation, are required to uphold by international obligations that we have voluntarily signed up to. These include the right to life; a prohibition on torture and cruel, inhuman or degrading treatment or punishment; the right to security of the person and freedom from arbitrary detention; the right to humane treatment in detention; the right to a fair trial and a fair hearing; the right to privacy and reputation; the right to freedom of thought, conscience and religion or belief; the right to freedom of opinion and expression; the right to freedom of assembly; and the right to freedom of association.

Given the implications of the Queensland act, the Commonwealth parliament's human rights committee, of which I am a member, has decided to undertake an assessment of its compatibility with human rights and has sought further information from the Commonwealth Minister for Justice.

Many in the community are already clear that the provisions in the Queensland laws unduly restrict the human rights and civil liberties of Queensland citizens and particularly target the rights which are so fundamental to our democracy—the right to peaceful protest and the expression of political opinion. Here we see legitimate security concerns being trumped by legal overreach which is designed to stifle alternative views.

I was very interested to note that one of the first questions and actions in the Senate of my Senate colleague Senator Leyonhjelm was to ask a question regarding the G20 security laws. I hope that he will speak on this today because, avowedly being a person who professes to be interested in rights and freedoms, it will be interesting to see the stance that he takes in relation to this legislation.

It is a matter of legal overreach. There are legitimate security concerns—of course there are—but in this case, clearly, many of the laws are designed to stifle legitimate political opinion which is different to that of those who seek to stifle it. Why else would large banners expressing a differing point of view to that held by Prime Minister Tony Abbott be banned? How is that a security issue?

The G20 summit is in fact a great opportunity for Australia to model a robust democracy, where we do have freedom of expression and we do have freedom of political thought.. It should be a chance to showcase our proud democratic tradition to the world. World nations will be represented at this G20 summit. Instead, we have Queensland laws being extreme and, indeed, only time will tell whether they will even be workable.

The Australian Greens will not be a party to restricting human rights where the restriction is unreasonable, unnecessary and disproportionate .    We will not support this federal G20 bill because we will not facilitate these laws and assist in expanding their scope. Despotic laws like these have no place in our Australian democracy.

I think it is important to give some context to this legislation in terms of an increasing trend we are seeing throughout Australia. As a federal parliamentarian, I respect the responsibility that state legislatures have for law and order. However, it is with alarm that I am witnessing a disturbing trend around Australia across the states and territories. Communities are being increasingly disempowered and having their time-honoured rights stripped away in many cases. I think it is really important that the parliament is cognisant of these changes and can see this trend. I certainly know that there are members of the Australian community who are becoming increasingly aware of it.

So it is that in Victoria we have seen the Napthine government amending its Summary Offence Act earlier this year to attack the right to peaceful protest and the right to assembly by giving the police extensive move on powers among other measures, reminiscent of the worst of the Joh Bjelke-Petersen era in Queensland

It is chastening to note that at the time of Nelson Mandela's death, when world leaders had gathered to mourn his passing and pay tribute to his courage and leadership, journalist Jeff Sparrow pointed out in an article in The Guardian that many of the actions that won freedom for his people—that we now laud as being successful and honourable—would now be illegal in Australia.

Sparrow observed:

The right to protest does not matter when everyone agrees with you. It takes no courage whatsoever to praise Mandela in 2013. But in the early days of the anti-apartheid struggle, things were very different.

He points out that in Australia, anti-apartheid activists faced harassment. During the protests against apartheid that took place when South African sporting teams toured Queensland, Joh Bjelke-Petersen called a state of emergency, and unleashed some of the most savage police violence this country has ever seen. That is in my living history. I remember those scenes. Yet it is somewhat chilling to realise that back then Australian legislation was not nearly as draconian as it has since become.

Mandela's recent death saw bipartisan support from Labor and the coalition. But, as Sparrow remarks, there is also bipartisan support from Labor and the coalition for security legislation in Australia that means, for instance, that it is an offence punishable by 25 years in prison to recklessly provide funds to terrorists, or supporters of terrorists, even if they are overseas. He suggests that if that law had been in place 40 years ago it would have been a serious crime to raise money for Mandela—a man committed to the armed struggle in South Africa to achieve freedom for his people.

It has been argued by Monash law lecturer Patrick Emerton that if the antiterrorism laws had been in force in the 1980s—the ones that we have now—it may well have been a criminal offence in Australia, punishable by up to 25 years in prison, to teach members of anti-apartheid organisations to use a photocopier.

If we go to Tasmania, we see that last year the Giddings government legislated to ban anti-abortion protesters from protesting within 150 metres of abortion clinics. But the legislation was not specific to that target. Next time it may be a different protest against a different target. Draconian laws make us all vulnerable. Then, in the heat of the Tasmanian election campaign, the would-be Premier at the time, Mr Will Hodgman, clearly thought it was acceptable to up the ante and committed to introducing mandatory jail terms for environmental protesters who disrupt business.

Jeff Sparrow points out again in the same Guardian article of 11 December 2013:

In the past, even many politicians accepted political protests as a legitimate form of popular expression, a way that ordinary people could shape the direction of the nation.

However, with time it seems that markets have become king and individuals these days are seen more as consumers than as citizens. So street demonstrations have come to be seen not as part of democracy, which they used to be seen as, but as an attack on it, since they inhibit the market exchanges that are taken as society's most important element. In other words, the rights of businesses trump the rights of protesters. Essentially, that is what Hodgman was arguing in Tasmania.

In other states and in the Northern Territory we have seen the wholesale introduction of mandatory sentencing, which imposes minimum mandatory sentences for certain offences. But, despite removing this time-honoured role for judges to exercise discretion and judgement—what they are actually employed to do—by taking into account the circumstances surrounding a particular offence and a particular offender, there is absolutely no evidence that mandatory sentencing reduces crime.

There is much evidence, however, that it leads to manifest injustice in some cases, as in the infamous Northern Territory case that appalled people around Australia in 1999, when Kevin Cook, a homeless person, was sentenced to 12 months in prison under the Northern Territory's notorious three-strikes law that was in effect at the time. His crime? Stealing a towel from a clothes line—12 months in prison. Mandatory sentencing condemns some minor offenders to totally unjust and disproportionate punishments, punishments which actually offend most Australians' sense of what is fair and legitimate.

Back in the 1990s the Northern Territory government were pioneers of mandatory sentencing. They were at the forefront, along with Western Australia, when they introduced mandatory minimum sentences for property crime in 1997. This was a notorious regime. Offenders were imprisoned for 14 days for a first-strike property offence, 90 days for a second and 12 months for a third, irrespective of how minor. So at that time there was a case of a 16-year-old with one prior conviction who went to prison for 28 days for stealing a bottle of spring water. We had the case of a 17-year-old juvenile first offender who went to prison for 14 days for stealing orange juice and lollies, and we had a 15-year-old Indigenous youth who went to prison for 20 days for stealing less than $100 worth of stationery from his school. That young man died in custody while serving his sentence.

Yet, while these laws were in place in the Northern Territory, property crime went up. These laws were then repealed in 2001, and after that property crime went down. That is based on figures from the Office of Crime Prevention, a part of the Northern Territory's Department of the Attorney-General and Justice. But despite the criticism that mandatory sentencing has attracted universally from lawyers and lawyers bodies here and overseas, the Northern Territory government reintroduced mandatory sentencing laws for a second time on Valentine's Day this year. Again, these laws will increase the minimum time that offenders have to spend in prison and restrict the ability of judges to suspend sentences for certain crimes. So their failed experiment is being repeated.

Western Australia too has mandatory sentencing, for assaults against police and public officers and for dangerous drivers who cause death or serious injury during a police pursuit. The Barnett government also wants to introduce mandatory sentences for assault during a burglary. In March this year the Chief Judge of the District Court of Western Australia, Justice Martino, made it clear that he believes that any reduction in sentencing discretion increases injustice. He pointed out that experience has shown that rigidity increases rather than decreases injustice.

In New South Wales mandatory sentences are now imposed for king-hit assaults involving drugs or alcohol, despite the fact that they are totally unproven as a means of reducing crime. The New South Wales Bar Association president, Phillip Boulten SC, has stated:

There's no evidence at all that mandatory sentencing ever decreases the amount of crime that's committed and it has the ability to act unfairly on vulnerable and disadvantaged groups.

Still, it is the Queensland government that has to get the gold star at this moment in history for its across-the-board attacks on its own citizens' rights and long-standing legal conventions. For this reason, it has been in the news constantly with concerns being raised by the various things that it is doing. The G20 laws are just another egregious example from the Queensland parliament.

Previously, we have seen the so-called 'bikie laws' curtailing freedom of association and imposing punishments, including extensive solitary confinement. These are incursions into civil liberties that should worry us all. Today it may well be bikies, or even ex-bikies who may be trying to turn over a new leaf, but tomorrow it could be any other class or group of citizens being targeted by the state. If we give away the long-standing rights that we have we lose them and they are not there when some of us need them. Freedom of association is something implied in our very Constitution, as the High Court set out in 1997. But this vital implied right is, sadly, not reflected in our state legislatures.

New South Wales and Western Australia have virtually identical provisions to those of Queensland that say if you are under a control order you cannot associate with another controlled member of a declared organisation. Back in my home state in South Australia, it is an offence for any person to associate with a member of a declared organisation more than six times in a 12-month period. Victorian legislation is similar to Queensland's by saying that a control order can prevent a person from associating with a member of a 'criminal' organisation. In the Northern Territory a controlled person cannot associate with another controlled person. All this is in spite of the evidence that members' criminal activities tend to occur independently from the formal structure of motorcycle organisations. But it is only in Queensland at this stage that people are detained under such laws in solitary confinement for 23 hours a day in a cell that is the size of a large dining table, while wearing a pink uniform.

None of this legislation is actually limited to bikie gangs; it can be extended to other organisations. The Vicious Lawless Association Disestablishment Act, for instance, includes references to:

… any other group of 3 or more persons by whatever name called, whether associated formally or informally and whether the group is legal or illegal.

As pointed out by Robert Corr, prosecutor with the DPP, in an article in the Overland of October 2013:

The Queensland Law Society notes this could include sporting groups and book clubs; the onus will be on the accused, rather than the state, to prove that ‘the relevant association is an association whose members do not have as their purpose, or one of their purposes, engaging in, or conspiring to engage in, declared offences’.

And it is only in Queensland, a state which has taken years to recover from the corruption and gerrymandering under the Joh Bjelke-Petersen government, where the government is rushing through laws which will disenfranchise Queenslanders under the guise of electoral reform. The Newman government is introducing the first voter ID laws in Australia while reducing the amount of electoral funding available to smaller parties considerably. Its Attorney-General, Jarrod Bleijie, presides over anti-union lawns which are so extreme that even at the Institute of Public Affairs has condemned them.

Between its attacks on freedom of association and its treatment of prisoners detained under related laws; its attacks on Queenslanders' abilities to participate in democratic processes, like elections and union activities; and its attacks on people's ability to go about their daily lives during the G20, the Newman government's record is terrible. To add insult to injury, the government, the Premier and the Attorney-General of Queensland have been involved in concerted attacks against judges and lawyers who speak out against these human rights abuses and against lawyers who have the temerity to defend those charged with crimes in Queensland.

Constitutional law expert, Professor Gerard Carney, has said that he has never heard of the government in Australian modern history accusing members of the judiciary of living in ivory towers and being unaccountable to the community, saying it is unprecedented and incomprehensible. He is reported on ABC radio as saying:

One of the paramount principles that we have enjoyed is the benefit of is public confidence in the integrity of our judges and our courts.

That is in fact now a constitutional requirement that nothing be done in a way to impair public confidence in that institutional integrity.

To have the Premier come out in those terms is appalling, it damages our constitutional system and the attorney traditionally has had the role to protect the courts from that sort of scandalous comment.

The Greens will not accept erosions of our fundamental rights and freedoms, wherever governments in all Australian jurisdictions are attacking them. We will fight those erosions in whatever forum we can. We will not pass federal laws that enable them, and that extends to this federal G20 bill. The Senate should reject this bill and affirm Australians' rights to participate fully, equally and freely in our democratic society. We should be an example of a robust democracy when other nations converge on Brisbane for the G20 events.