Jeannie Ferris (SA, Liberal Party) Share this | Link to this | Hansard source

On behalf of Senator Ferguson and the Parliamentary Joint Committee on Intelligence and Security, I present the report of the committee, Review of security and counter terrorism legislation. I seek leave to move a motion in relation to the report.

Leave granted.

I move:

That the Senate take note of the report.

I seek leave to incorporate a tabling statement in Hansard.

Leave granted.

The document read as follows—

The Parliament passed a number of important legal reforms in the aftermath of the attacks on the US in September 2001. Members will recall that this first package of legislation was the subject of review by the Independent Security Legislation Review Committee under the Chairmanship of Mr Simon Sheller AO QC. The Sheller Report was tabled by the Attorney General on 15 June this year.

On behalf of the Committee, I express our gratitude to the Sheller Committee. The Sheller Report was thorough and has provided a valuable framework for our own inquiry.

Australia is not immune from the influence of terrorist groups and specialist terrorism offences are an important, although not exclusive, tool in Australia’s counter terrorism strategy.

Terrorism law is essentially a preventive model that allows police to intervene at an earlier stage to avoid potentially catastrophic events. It differs from the traditional criminal justice model in several important ways. For example, the definition of a terrorist act and terrorist organisation are pivotal to a Commonwealth offences and expanded intelligence and law enforcement powers. Terrorism law also extends the criminal law by including preparatory offences, capturing conduct before intent has crystallised or any attempt is committed, and some offences relate to a person’s status rather than their actions. This raises important issues of both principle and practice.

It would be improper to canvass the alleged facts in any case currently before the courts. However, this does not prevent the Parliament from assessing the quality of legislation and responding to identifiable problems.

For example, there was criticism that the definition of terrorism was overly complex, while others described the definition as the best in the western world. The existing definition makes an important distinction between political motivated violence and other serious crimes. It also excludes ‘protest’, ‘dissent’ and ‘industrial action’ in order to send an important signal that terrorism laws are not to interfere with freedom of association, assembly and expression.

No matter how heinous a crime may be, we believe it is crucially important to maintain the terrorism law regime as a distinctive area of law. Consequently, we recommend that the motivation for the terrorist act – to advance a political, religious or ideological cause – and the exclusion for protest, dissent and industrial action should remain as part of the definition.

Some offences were said to lack specificity and do not meet the standards necessary to preserve the rule of law. To deal with this problem we have recommended some modest refinements to remove uncertainty and reduce the risk of unintended consequences. Unlike the Sheller Committee, we have not recommended repeal of the association offence but we have asked government to re examine the provision in light of the Sheller Committee’s recommendation.

Since 2002 the Parliament has passed over thirty pieces of anti terrorist legislation that have strengthened Australia’s ability to respond to terrorist threats. Terrorism law is now much more than a set of core offences in the Criminal Code. For example, the period for questioning terrorist suspects has been extended and there are new procedural rules for terrorism trials; law enforcement officials may seek control orders and preventative detention orders and the States have introduced a special AA classification system for prisoner that pose a threat to national security.

The Government has recognised the importance of keeping terrorism laws under review but to date Parliamentary review has been sporadic and fragmented. The picture of how terrorism laws are actually working is incomplete. It is vitally important that we retain public confidence in the new laws and that we have timely and well informed reporting and analysis.

The Committee believes it is time for an integrated approach to monitoring and review of terrorism laws and has recommended the appointment of an Independent Reviewer, who can set his or her own priorities and report annually to the Parliament. We have also recommended an amendment to the Intelligence Services Act 2001 to require the Committee to examine the annual reports. This will ensure that ongoing democratic accountability is built into the system.

Finally, we are concerned that the evidence continues to point to the negative impacts of anti terror laws on the Muslim communities. The Muslim Reference Group is an excellent initiative.

But we must also acknowledge that the impact upon Arab and Muslim communities is very real and potentially counterproductive. It is incumbent upon us all to ensure that debate about terrorism is rational, open and well informed and does not fan the flames of prejudice and resentment. While terrorism poses a threat it is also an opportunity – an opportunity to promote democratic ways of expressing dissent, increase participation in public affairs and promote social cohesion.

I commend the report to the Senate.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

Speaking to this motion, I indicate that this report confirms what the Greens have been saying for five years now on these issues. It shows that there are substantial and fundamental problems with this government’s terrorism legislation and that they have serious implications for human rights in this country.

The Greens have not been party to the development of this report because the Greens are excluded by legislation from participating in the Joint Committee on Intelligence and Security. The government and the opposition work as one when it comes to these issues and Australia’s most secret agencies and they do not want the fresh and independent approach that the Greens would bring to accountability in this area. Nevertheless, in this case of a review of Australia’s security legislation, the committee has been quite critical of the government’s approach. This is despite the fact that the government controls this joint committee and despite the manner in which the government seeks to use national security as an electoral weapon.

This report shows there are big problems with Australia’s terrorism laws that must be fixed. It echoes concerns raised by the Greens back in 2002, when I participated in a Senate inquiry into the legislation which underpins the terrorism laws that we have in this country. It also echoes the finding of the government’s own Sheller review into terrorism legislation, which also found substantial problems, in particular with the power of the Attorney-General to label organisations as terrorist organisations and to therefore criminalise their members and supporters. The Greens opposed the giving of this power to the Attorney-General and we continue to oppose it. This is a view that we share with Anthony Mason, a former Chief Justice, who was reported in the Australian in October this year as saying:

Some limitation or suspension of individual rights is necessary in order to meet the threat of terrorism. But it is of fundamental importance that any intrusion into traditional rights is proportionate to the threat which is apprehended, does not involve the grant of powers that may be used for other purposes and is subject to effective supervision by the courts. Neither ASIO nor the attorney-general is a suitable guardian of individual rights.

That is not the Greens speaking; that is the former Chief Justice Anthony Mason.

Earlier in the year the Greens moved a motion in the Senate to disallow the listing of the Kurdish Workers Party as a terrorist organisation because we agreed with the concerns that had been expressed to this committee. We also agreed with the views of legal and community groups that the impact of the ban far outweighed any benefits in terms of dealing with genuine terrorist threats. Kurdish Australians who are considered refugees precisely because of their association with the Kurdish Workers Party face severe repercussions because of the ban. Kurds who flee their homeland in the future may also be refused refugee status because of this ban, supported by both the major parties in the parliament. It is a terrible irony that Australia supports Kurds in Iraq and yet across the border we label the Kurds terrorists just so that we can get favourable treatment from the government of Turkey. Had these laws been in place in previous times, the ANC in South Africa and the East Timorese resistance movement, now governments of their respective countries, could similarly have been banned in Australia.

The Sheller report is unlike this report in that it suggest handing over the power to ban organisations to a court. This is something the Greens support. We believe it is a step in the right direction. Some of the comments in this committee report reflect some of the concerns the Greens have. The committee makes 26 recommendations on a range of issues in relation to terrorism laws. Nearly all reflect the criticisms made by the community and the legal profession that the terrorism laws radically impinge on human rights in this country. I note in particular the way the committee has highlighted the negative impact on the Arab and Muslim community as a result of the terrorism legislation that now exists in Australia.

The Greens have always supported sensible measures on these issues of terrorism, such as the strengthening of security at airports, which we have supported in this parliament. However, we share the concerns of the community and the legal profession about the way in which our current terrorism laws radically impinge on the human rights of Australians. We have always said that we believe, in the main, that our existing criminal law is the framework we should use to address the challenge that terrorism presents us with. That is the basis that we should be using. Those fundamental tenets that exist in our criminal justice system should be maintained as our defences against the scourge of terrorism that we face. I note that similar comments were made recently in a speech by Malcolm Fraser to Liberty Victoria, in which he spoke about our strongest weapons in the war against terrorism being a defence of our rights and a defence of our liberties.

This is a point that has frequently been made by me in this chamber and by other commentators on human rights, those of the legal profession and people who are concerned about these issues in the community: if we bring in increasing legislation that takes away the power and the right of Australians to interact in the way we have become accustomed to—to be able to speak, to be able to engage in political dialogue and discussion—then we are taking away those very freedoms and democratic principles that this government, the Bush government and other governments speak about wanting to defend. This is why the Greens are critical of the approach taken by the government. And it is why we say that fundamentally underpinning an approach in this country to dealing with terrorism needs to be our criminal justice system, our existing criminal law and the fundamental tenets about not being detained without a trial, about being able to have access to a lawyer, about not having your comments used against you and about the right to silence. These fundamental tenets of our legal system need to underpin the response not only in Australia but around the world to the challenge of terrorism. When we speak about terrorism we speak about criminal acts, such as murder and conspiracy, which exist in our criminal law. That is the basis on which we should be responding to the challenges that terrorism presents to us.

But make no mistake: this report is a test for the government. Will they act on these recommendations, on those of the Sheller review? Will they reform terrorism laws that exist in this country to reflect the concerns that have been put forward in this parliament by senators of all political parties? Will they change our terrorism laws to reflect the concerns that the legal profession as a whole has expressed time and time again, through the Law Council of Australia and other representatives? Each time we have an inquiry into new terrorism legislation we hear from a range of different peak legal organisations in this country about the way in which the legislation being proposed, and passed through the parliament with the support of both the major parties, impinges on our fundamental human rights and takes away those tenets that have underpinned the legal system in this country and in Western democracies around the world. Will the government seek to reform terrorism legislation in this country, to take on board and to consider those concerns put forward by this report, by senators in here and by well-respected community and legal voices? Will they put in place human rights safeguards that have been suggested? On past form I have to say it is pretty unlikely.

The Greens will continue to oppose the government’s use of the war on terrorism to take away and undermine our human rights and the fundamental tenets of our legal system in this country. We want a bill of rights. And we want to support a fair, multicultural society, which is the best defence against the challenge of terrorism. We want to see an independent foreign policy that can address the root causes of terrorism, not inflame them. We need to address those root causes rather than symptom by symptom as we impinge on the human rights framework and the fundamental legal tenets on which this country’s legal system is based.

Robert Ray (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I must say, listening to the previous speaker extol the views of the former Prime Minister Mr Fraser, that I will just take that under advisement, remembering his role in the mid-1970s, with the bombing in Sydney and the total trampling then, when he was in power, on everyone’s human rights without any compunction whatsoever. I am glad the poacher has turned gamekeeper. It does show that people can be reformed and can change, especially when they do not personally have to take responsibility for their actions anymore.

What you are looking at in this report is something you will not see too often again. You will not see this government allow a committee, by way of statutory obligation, report to this parliament—because, now they have the numbers in this chamber, they simply will not put those provisions into legislation. The reason you have the Sheller report and this report of the Joint Committee on Intelligence and Security is that the opposition and other parties in this place, including the Greens, insisted that there be these reviews and report-back mechanisms.

If you want to look at the real intent of the government, you will see that the moment they got a majority here the first sunset clause they put in went for 11 years. Even though the committee generously—they almost erred on the side of generosity—recommended 5½ years, we got 11 years. That is an absolute joke.

This is not a report that was put in in anger. For the most part, this is a constructive report—a unanimous report of the committee—and one in which we do not expect the government to adopt every recommendation. But I do expect on this occasion that they have an open mind and consider every one of these recommendations, because they are all quite reasonable, as was the Sheller review.

Today, I want to draw the attention of the Senate to recommendation 2. It outweighs all the other recommendations because it puts in place a recommendation for the future. We have had, in this place, 19 or 23—Senator Bartlett probably knows how many—pieces of antiterrorist and security legislation in the last few years. None of it, of course, dovetails in. Sometimes it is slightly inconsistent. We do not have an overall regime; we have 23 parts of a regime. What we suggest in the report is that rather than have a parliamentary committee review it in a sporadic way, and rather than relying on the cumbersome processes of the Attorney-General’s Department getting to these issues, we set up an independent reviewer.

That independent reviewer, on an annual basis, would review the whole plethora of terrorist legislation and make incremental recommendations. In other words, you would not get a revolutionary change every year, but you would get improvements year by year to impose consistency and to respond to how the legislation is working and to see what problems are thrown up. It will give people with complaints or doubts about the system somewhere to go.

Of course, people have pointed out that the independent reviewer will be appointed by government and have asked what there is to stop the government putting in a stooge. I would say that, generally, reputation suggests that that will not be the case. I do not ever accuse this government of rorting the position of Auditor-General or Ombudsman et cetera. I do accuse them of totally rorting the Electoral Commission in the previous Electoral Commissioner—but that, on the whole, is the exception. I think a sensible government would see this as the perfect way forward. I am not saying we have a sensible government, because they are not really open to these sorts of new ideas. But to have an independent reviewer look at these things annually and report to parliament and the joint intelligence committee would be an excellent thing.

Of course, there is no such thing as an original idea. Where does this exist? How often do we hear, at question time, Senator Minchin get up and say, ‘Look at those people opposite; why don’t they follow the lead of Tony Blair on Iraq?’ I say to this government: why don’t you follow the lead of Tony Blair by setting up an independent review, just like they have in the UK? It worked successfully there—why not here?

It really comes back to whether the government has an open mind and wants to progress these things. It is very hard to explain to a government where its self-interest lies, but in this case its self-interest lies in adopting a proposal like this, rather than circling the wagon trains and saying, ‘We will defend exactly what we’ve got.’ We all know that in rushing 23-odd bills through this chamber there will be faults. To address those faults on an annual basis, in a less than sensational way so that incremental change comes in, is sensible government policy. It is one that assists government and does not erode its position. But it all depends on whether the government has an open enough mind to address it.

The rest of the recommendations are sensible. I know the government will adopt some and not all—I accept that—but we have commented on the various aspects of the Sheller report.

I want to conclude on this note. We have not addressed any issues that Sheller raises in terms of the proscription regime because there is a statutory requirement that next year, in the immediate future, we review that regime by itself. We will be having public hearings in the first half of next year and reporting to this parliament by about May on the proscription regime. That is why we have not addressed that aspect of the Sheller review.

I commend this report to the parliament and recommend that it read be in conjunction with the Sheller review. I think it will advance the cause of civil liberties in this country without impinging in any way on the security aspects.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

I will not speak for long on this but, as I often do with the Parliamentary Joint Committee on Intelligence and Security, I want to emphasise the importance of the work the committee does. The issues that this report deals with—security and counter-terrorism legislation—are crucial and pivotal. Whilst clearly the Democrats have had disagreements with both the major parties in the content of some of the legislation that has passed into law with the support of both the major parties in recent years, I want to place on record again my view that this committee does a constructive job in its role of overseeing legislation such as this. I always make the point that I think it would be beneficial to have a third party represented on the committee. That is, of course, proscribed by legislation, so it cannot happen unless we get the chance to change the law down the track.

I also want to take up Senator Ray’s point that the sorts of accountability mechanisms that this committee provides are a clear legacy of the Senate’s role over the years as an independent house of review. As a chamber that is not controlled by government, it puts accountability mechanisms in legislation to enable just this sort of review to take place. As long as you have a committee that takes its responsibilities seriously and operates, as far as possible, in a nonpartisan way—and this committee has done that—then it provides a very valuable mechanism. But the next step of course is: what happens when the reports come down?

The previous report that this committee brought down, in reviewing the proscription regime with regard to a number of organisations listed as terrorist bodies, noted the lack of engagement and response from the government to requests and recommendations from previous committee reports. That, to me, is a worrying sign. Often, the key issue is not a government’s policy but the way it reacts to different views, different ideas and parliamentary reports. What we have seen in a whole range of areas in recent years is a growing lack of interest in reports from Senate committees and parliamentary committees and a lack of interest in their recommendations. That shows itself most strongly in the failure of governments to even bother to respond to reports—often for years. And when they do respond, it is in a fairly derisory way.

In an area as fundamental as security and counter-terrorism legislation it is even more unacceptable when you have a cross-party committee bringing down bipartisan reports that clearly are not seeking to make political points. They are clearly just putting forward constructive assessments of problems they have identified or improvements that they suggest. The recommendation that Senator Ray singled out is a clear example of that. When governments do not even bother to respond to that, or respond dismissively and very belatedly, it is a clear sign of a problem in attitude.

As we all know, legislation is not just about the detail of what is in the law; it is about the way it is administered. The real problem is when the attitude or culture of a department, the government or a particular minister does not allow proper consideration of genuine concerns. That is when the administration of a law becomes very problematic. In an area as serious as this it is something we should be concerned about. I am not saying that all of the evidence already points to that conclusion in this area, but I am saying there is enough around for it to be worrying—based on the lack of a response from government on some previous reports. I think this one will be a real test. The real test will be how promptly the government responds to what is an important report and how considered their response is. Even if the response is prompt, if it is ill-considered then it is not much use either.

Whilst the Democrats are excluded from being part of the committee, we watch its work relatively closely because it is an important area for us. We accept that there is always a balance between security and individual freedom. We think the balance is wrong at present. Even more important than that is not just that the balance is wrong in the legislation but how adequately it is administered and enforced. So we will be watching this closely to see how prompt and adequate the response is. I think it will be a key test of the government’s bona fides in this area. I seek leave to continue my remarks.

Leave granted; debate adjourned.