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

It seems somewhat ironic that the government of its own idea and thinking—not with recourse to any recommendations from any of the other bodies that you have been citing in relation to justifying the continuation of the regimes—came up with 10 years, and you are suggesting that it is a virtue that you have been prepared to wind it back to four years on the recommendation of PJCIS. You are preferring to take the recommendation of that body as opposed to following, as you said, the recommendations of the Independent National Security Legislation Monitor. I put to you that not only COAG and the Independent National Security Legislation Monitor have expressed concerns about this regime and, indeed, the time frame; a very strong view has been put out there by organisations that I will cite in a minute that it is completely unnecessary and inappropriate to use this particular bill—which we are told it is an urgent matter to get through the parliament. That has therefore led to a lot of concerns about the speed with which it has been analysed.

It is complex legislation, and a lot of people who made submissions to the PJCIS said that they had limited time. Some people said that they did not have enough time to analyse the consequences of this legislation properly. Nonetheless, the justification by the government is that this is an urgent matter that has to be got to straightaway; yet we know that there was at least a year to allow some more careful and slower reflection on the consequences of extending the sunset provisions in relation to the PDOs, the control orders and the other powers. So there is a view that it is completely unnecessary and inappropriate to use this bill to extend the sunset clauses attached to powers like control orders, preventative detention orders and ASIO's questioning and detention warrant powers, because they would have remained in place for at least another year regardless of the passage of the bill.

These are exceptional powers that allow authorities to operate outside the traditional criminal justice process. They permit the restriction of liberty of people who have not been charged with—and, in some cases, are not even suspected of engaging in—a criminal offence. Under these powers, a mother or a father or a teenager could be detained and questioned by ASIO or the police and provided only limited access to loved ones and legal representation without the authorities needing to charge the person with any criminal offence or establish that the person is a threat to national security. As you point out, they have only been used very rarely in the past, but that is one of the concerns that has been reflected in some of the commentary around the necessity to maintain these very, very restrictive regimes, because having excessive and restrictive laws on the books for which there is not a clear need is dangerous in itself.

These powers have been subject to review, as we have said. Both the COAG review of counterterrorism measures and the INSLM considered whether these powers remain necessary and effective tools to counter terrorism. They had regard to whether and when they had been used and to information provided by law enforcement and intelligence agencies. Both the INSLM and the COAG review recommended that the preventative detention order regime be repealed, describing the PDO regime as being 'at odds with our normal approach to even the most reprehensible crimes' and may be thought to be unacceptable in a liberal democracy. The INSLM also recommended substantial reform to the control order regime. Similar comments were previously made by the former Parliamentary Joint Committee on ASIO, ASIS and DSD in an earlier inquiry about ASIO's questioning and detention powers.

There are many concerns on the record about these regimes. There are concerns about the unnecessary extension of the sunset clauses not from 10 years—which is what the government was initially proposing—but even to four years, when there was time to consider these in a more careful and thoughtful way.

It is a fairly easy argument to make—it is a fairly flippant thing to accuse someone who is disagreeing with your stance of being naive in some way. The Australian Greens have been at pains to consult carefully with those in this area that are considered to be experts in the consequences of changes to laws on human rights and civil liberties in Australia. We are aware of advice from organisations in relation to these regimes including the INSLM; the COAG Counter-terrorism Review Committee; the Gilbert and Tobin Centre of Public Law; Human Rights Watch; acknowledged human rights academic Professor Ben Saul; the Human Rights Law Centre; the Castan Centre for Human Rights Law; and, of course, the PJCIS, which, when it had a short time frame to consider this legislation, also had a view about the government's proposed time period. For those reasons, the Australian Greens say that we need to remove these clauses from the bill and take some time and carefully assess whether these are needed and for what period of time they should be on the books before they are reviewed again.