Nick McKim (Tasmania, Australian Greens) Share this | Hansard source

The Australian Greens certainly understand the arguments that the government is putting here. But we need to be very careful when dealing with areas like unexplained wealth that we find the right balance, and we don't believe that the government has found the right balance here. I'll make a few points as I move through this speech about international human rights law and covenants that the Australian government has signed up to and how this legislation sits within that international legal framework.

Firstly, I want to talk about retrospectivity. It’s a very dangerous thing to come in and legislate with retrospectivity in this place. I note the Law Council's submission to the inquiry into this bill recommended that, if the bill were to be enacted, it only apply prospectively.

I also want to talk about the privilege against self-incrimination. This is a common law privilege that provides that a person cannot be required to answer questions or produce material which may tend to incriminate them. This is a substantive right, it's a longstanding right, it applies to both criminal and civil penalties and forfeiture, and it's a protection required by the International Covenant on Civil and Political Rights. It's protected repeatedly under Australia's legislative framework. I'm relating these comments to schedule 4 of this bill, which would allow a magistrate to make a production order compelling a person to produce certain documents or to make those documents available to a relevant authorised state or territory officer. That schedule, unfortunately, would remove that person's privilege against self-incrimination both at the time and potentially later as those documents could then be made available to other jurisdictions in relation to further criminal proceedings.

I want to make a comment here about how this current government treats Australia's international human rights and civil and political rights obligations. Basically, it doesn't care about them. It throws them in the bin regularly. We see, time after time, this government acting in breach of the Covenant on Civil and Political Rights, in breach of the refugee convention and in breach of a whole range of other international human rights covenants. Why bother signing up to these things if you're just going to ignore them?

There was a time when Australia was regarded internationally as one of the global leaders in human rights. What we've seen—and this has been accelerating rapidly in recent years—is a scenario where this government and, before it, Labor governments have progressively crab walked away from their responsibilities under international human rights law. It's not good enough. It's shameful and disgraceful. We are seeing, in countries around the world, an abrogation of responsibilities that countries have actually signed up to under things like the refugee convention and the International Covenant on Civil and Political Rights.

I sit on the Parliamentary Joint Committee on Human Rights in this parliament. I ask members to go and have a look at the reports of that committee. Time after time that committee finds that what the government is doing in the legislation that it introduces into this place, and what ultimately the Senate is doing by passing those pieces of legislation, is in breach—or likely to be—of Australia's international human rights obligations and obligations under things like the refugee convention and the International Covenant on Civil and Political Rights.

I know it's kind of trendy over on that side of the Senate to not worry about things like human rights, but let me tell those on the government benches this for nothing: once you start handing away other people's rights willy-nilly, which you are doing—and if you doubt that then I invite you to come with me next time I go to Manus Island; I'll introduce you to many people whose human rights you have trampled disgracefully over the years—and once you abandon the principles on which international human rights covenants are based, ultimately you will find yourself losing those rights yourselves. It's very dangerous to start giving away other people's human, civil and political rights because ultimately you will find that your own start to disappear.

I don't want anyone on the LNP benches, the government benches, to come into this place in five, 10 or 20 years squealing that their rights are starting to be eroded, because I will say to them, 'You started this; you were part of this when you gave away other people's rights.' There are people on Manus Island and Nauru and there are people in Australia's disgraceful onshore detention regime whose rights are simply being ignored and manifestly trampled.

This legislation also impinges on the presumption of innocence. That's a presumption that is absolutely central to our justice system and to the rule of law. Civil Liberties Australia noted in their submission to the inquiry into this bill:

Unexplained wealth laws are not conviction-based—

They are absolutely right about that—

They remove the need to prove a person has engaged in any criminal activity or indeed that any offence has even been committed. Unexplained wealth laws reverse the burden of proof by requiring a person to prove on the balance of probabilities that assets are not the proceeds of crime.

It's very clear what's happening here. This is an erosion of the presumption of innocence in this country. It is absolutely accurate to say that this law reverses the burden of proof, because, of course, it does place that burden on a person to prove on the balance of probabilities that the relevant assets are not the proceeds of crime.

What you'll find when laws like this are introduced into the parliament is that governments—and, in this case, also the Labor opposition—love to talk about organised crime. I want to tell you a story about my home state of Tasmania. We've got similar laws in Tasmania. It was argued at the time by the relevant minister in the parliament that these laws would target senior organised crime figures that used sophisticated and organised business models to hide their assets and involvement where existing conviction based confiscation and forfeiture laws were insufficient to bring them to justice.

I've talked about the departure from conviction based laws coming at a cost to fundamental human rights. It's important to know that, in Tasmania, when these laws were independently reviewed last year, data provided by my home state's department of public prosecutions showed that the unexplained wealth laws had been used to recover amounts of as little as $3,000 and that none of the people who these laws had been used against could be described even closely as a senior organised crime figure.

What's happening here is that we're giving away and eroding the presumption of innocence. We're forfeiting rights to privacy. We're rolling over on our international human rights obligations, and parliaments and the Australian people are being told that this is to take on senior organised crime figures when, in fact, as I've just illustrated in the context of Tasmania, these laws are mostly used to seize assets from people who in no way could be regarded as senior organised crime figures.

Human rights lawyer Ben Clarke, also from my home state of Tasmania, has written:

In a democratic society … depriving citizens of privately owned assets is a highly intrusive act of state. Such conduct is prima facie in conflict with norms such as the sanctity of property ownership, freedom of citizens from unnecessary interference by the state, and the right to privacy. The seizure of assets by organs of the state is a coercive exercise of power which should not be undertaken lightly.

I completely agree with Mr Clarke on those matters.

I make this warning to the Australian people: there have been over 200 pieces of legislation passed through state, territory and Commonwealth parliaments in the last 20 years that erode fundamental rights and freedoms that we use to send our people overseas to fight and die, to protect and enhance. We are giving them away, hand over fist, because it suits the political agenda of the Liberal-National government, and the Australian Labor Party are too weak and gutless to stand up to them. That's what's happening here. We are on a slow zombie shuffle down a road to an authoritarian state.

To anyone who saw the ABC program this week about what's happening in China regarding their social credit system and the surveillance of their citizens: I reckon that would have sent a shiver down the spines of most people who saw that program. But don't lift your eyes out of what's going on in this country, because, although we are nowhere near as far down the road as the Chinese Communist Party government, we are heading dangerously in that direction in this country. And it's time that parliaments stopped falling in screaming heaps and handing over more powers, more authority to governments, and it's certainly time that governments and parliaments stopped abjectly rolling over and handing away our human rights, our civil and political rights, on the basis of political advantage.

We urgently need a full review of all of the laws that have been passed in this country in the last 20 years in the name of counter-terrorism, in the name of national security, so that the government can actually be given the chance to make the case that handing away all these rights that we used to be so proud of and we used to fight to defend and enhance is actually making us safer at all, because the government has abjectly failed to make that case. We should have a white paper on counter-terrorism in this country, and part of that white paper should involve a comprehensive analysis of all of the human rights, the civil rights, the political rights, that have been handed away by parliaments in the last 20 years, and an assessment should be independently made about whether handing away all those rights has done one thing to make one person in this country any safer. And, remember, we've now got laws not yet through the Senate but in this place which are what I call the 'papers, please' laws, which basically authorise Australian Federal Police to go up to people in airports and demand to see their papers. I know that the Secretary of the Department of Home Affairs, Mr Pezzullo, doesn't like me calling them the 'papers, please' laws but they are 'papers, please' laws. They are not necessary to make our airports any safer. What they do is feed in to the command-and-control mentality, the authoritarian or even totalitarian mentality of some in this country who believe that we should throw away or subjugate a range of rights around individualism, around freedom, around privacy in this country, because the people who are introducing these laws and the people who are advising ministers to introduce these laws feel more comfortable if they can exert more control and more surveillance over the citizens of this country. It is a very, very dangerous path that we walk down.

The point that Mr Clarke made, which is that a coercive exercise of power should not be undertaken lightly, is central to the Law Council's repeated calls for a comprehensive review of the Proceeds of Crime Act 2002 as contemplated by the 2016 Australian Law Reform Commission's Traditional rights and freedoms—encroachments by Commonwealth laws report. This review, the Law Council argues, is necessary to ensure legislative consistency with fundamental rule-of-law principles. The Australian Greens share those concerns and we absolutely support that call.

Now, it is funny, you know: parliaments are very happy to continue handing over rights that we used to hold so dear, rights that we used to cherish, rights that we used to fight for, and that, tragically, many of our citizens, Australian people, have died to protect and enhance, and this government are happy to hand away those rights; at the same time, they're outsourcing the real decisions in this country out of parliaments into corporate boardrooms. And, again, this is a very dangerous path.

Power and authority in this country should be centralised in the parliament because, albeit imperfectly, every one of us in here is accountable to the Australian people. We've got to stop handing over power and authority to our law enforcement agencies and we've got to stop handing over power and authority to corporate boardrooms. Because what you get is a slow shuffle down the road to an authoritarian state and what you get by handing over power to corporate boardrooms are devastating impacts on the environment—exhibit A: climate change, but there are many other exhibits—and appalling outcomes for people who aren't lucky enough to be at the top end of town, to be at the top end of one of the big corporates that exert so much power in this country and that parliaments are basically happy to provide for on the basis of the corporate donations coming back into the major political parties.

Remember: the Liberal and Labor parties combined since 2012 have received over $100 million in corporate donations—$100 million. Now, those donations aren't being made from the goodwill of corporate boardrooms; they're being made because the corporates know they can buy outcomes with their political donations. And we've seen it time after time—the Labor Party receiving money from the big fossil fuel companies, and what happens? Oh, they support the Adani coalmine. What a surprise, Senator Watt, that Labor would support the Adani coalmine after receiving massive donations from fossil fuel companies, including fracking companies. And I can go through it—I've got it all in my office. If you want me to go through all the donations that the Labor Party's received from the fossil fuel lobby, just let me know.

The Liberal Party—I was about to say they're no better, but, astoundingly, and you wouldn't think it possible, they're actually worse. As a result, we're seeing the real power and authority in this country outsourced to corporations and, in the context of this legislation, we are seeing power and authority outsourced to our security agencies. We need to stand up against this, and we need to call it out whenever it's happening.

The last point I make before my time expires is that on my trips to Manus Island I've been privileged to meet and form friendships with some of the people whose rights have been abjectly ignored and destroyed by this government. When you sit down with these people and you can see for yourself the human cost of the erosion of fundamental rights, freedoms and liberties, it just makes you—and it just made me—more determined to stand up against it.