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

I rise to conclude my remarks from last night on the Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 [2007] . This legislation, with its ‘sneak and peek’ powers for the Australian Federal Police, enables the Federal Police to enter people’s premises, confiscate property and documents and access their computer equipment—and to do all of those things without any obligation to let the people know. This is quite an extraordinary power to be given to the Federal Police, particularly in light of all the mistakes that we have seen in the case of Dr Haneef.

This is the first choice of the government for the legislation that we as a parliament should deal with. This legislation means that people will end up in court, with evidence that has been collected against them, and will have no capacity to challenge whether or not that evidence was collected legally. As the current legislation operates, if a search warrant is issued on your home, you are there and you are able to have a lawyer there to check that the search is carried out properly. For people who have evidence collected against them and brought against them in a court, this legislation removes the protection for them to be able to challenge that evidence, because they do not know that a search has occurred. Under this legislation, they do not need to be told for six months, 12 months or maybe 18 months—indeed, if the minister approves, they may never know that the search has been carried out.

There is no other comparable country around the world that has that kind of legislation. In the United States, there is a system for covert warrants where there are ‘sneak and peek’ powers for their police, but the police are not given anywhere near this length of time not to tell people. The USA PATRIOT Act is not as strong as this piece of legislation. We heard last night that it is a piece of legislation that is not only put forward by the government but supported by the opposition. As we see time and time again when it comes to security legislation—anything related to terrorism—it is a ‘me too’ loud and clear from the opposition, and we see that in relation to this legislation as well.

What the Greens say is that our civil liberties are important. The Greens say that the rule of law is important. The Greens say that we should not be removing people’s right to know what is going on in their homes and to be able to challenge evidence against them in a court. This is pretty fundamental and pretty straightforward. It is the way our legal system has operated forever in this country and in the countries on which our legal system is based. We are asking for the rule of law to be abided by, for our legal system to be upheld, for justice to exist, for civil liberties to be defended and for people’s rights to be defended. This piece of legislation says no to that, from both the government and the opposition. The Greens disagree. We do not agree with holding up people’s civil liberties, the rule of law or people’s right to know what is going on in their homes, that they are being investigated and that evidence might have been collected against them illegally. This legislation allows that to happen. It is not on, it is not acceptable and the Greens will play no part in this whatsoever.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

In the debate on the Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 [2007], the Democrats have not supported the legislation. We have acknowledged throughout the debate that the intended primary aim of this legislation—to harmonise controlled operations, assumed identities and protection of witness identity regimes across Australia—was an important and positive aim. Our concern, however, as we have expressed during the committee stage and in my speech during the second reading debate, is that this legislation goes too far. This legislation has some extraordinary powers—arguably, extreme powers—for our law enforcement agencies and does not counter those new and extraordinary powers with what we consider appropriate accountability, protection mechanisms or a safeguard for individual liberties, privacy rights and, indeed, human rights.

The Democrats have outlined repeatedly in this chamber this week our principal position, which is to acknowledge the need for changes to our legislative regime particularly in relation to antiterrorism laws enacted over the last few years. We have acknowledged that there is an argument for law enforcement and other investigative agencies to talk about new, arguably improved and maybe modern powers, but that debate has to happen in this place in a comprehensive and balanced way—that is, how will these laws impact on the rights and privacy of Australian citizens? How do we balance those rights with national interests and, yes, importantly, national security? We have been happy to have those debates, but I look over the last few years and see that more than 40 pieces of antiterrorism legislation, for lack of a better term, have been debated and passed in this place. When you add up some of the extraordinary and, indeed, extreme powers—and the ‘sneak and peek’ powers in this legislation do constitute extreme powers in a democracy such as ours—there are very good grounds for a new and comprehensive assessment.

I put on record that this is why the Australian Democrats have given notice of a Senate select committee proposal. The vote on that will happen tomorrow. That would be an opportunity for us to talk about, to re-examine, to assess and to scrutinise all of these laws not only in the context of various legal and other events that have taken place in modern times but specifically, I acknowledge, in light of the handling of the Dr Mohamed Haneef case. We need to see how these pieces of legislation interact with each other, but we also need to examine and understand the impact, if any, good or bad, that they are having on our democracy and on fundamental rights, such as the rule of law and habeas corpus as well as those human rights generally and specific privacy and security rights to which I refer.

This bill is another example of the government’s attempt to extend the unsupervised, in some cases, powers of law enforcement agencies, and it does so at the expense of privacy rights of Australian citizens. If you do not want to take that from the Democrats or from other minor parties then look at some of the submitters to the recent Senate Standing Committee on Legal and Constitutional Affairs inquiry. Look at the submissions and protestations from groups such as the Law Council of Australia. They have said:

... a manifest need for these extended powers has not been demonstrated and that ... no further erosion of Australian citizens’ rights should be sanctioned by the Australian Parliament.

I would hope that the parliament would listen to that.

I want to place on record, as did Senator Ludwig, commendations, congratulations and thankyous to the legal and constitutional committee for their ongoing and comprehensive work, and particularly for their help at a time when the Democrats were working very hard over time to get a supplementary report into that inquiry. I thank my colleagues who have participated in this debate. I think Senator Ludwig described it as a robust debate—I am not sure how robust—but we need an even more robust debate. We need a debate that actually looks at the laws that we have passed and examines them within this context. Until we do that, this parliament should not be passing any more legislation that enhances in such an extreme way the power of law enforcement and investigative agencies in this country, and certainly not without better justification than some that we heard in the chamber yesterday during the committee stage—even in things such as the explanatory memorandum—which do not adequately explain the need for some of the changes and certainly do not justify them adequately for the Australian Democrats.

We have participated constructively in this debate. We moved a raft of amendments designed to ameliorate what we considered the worst, the most difficult and the harshest aspects of the legislation. Those amendments were not passed. Some of the amendments that came through as recommendations from the Senate committee were adopted by the government in full or in part, and I commend the government and acknowledge that it did that. But I still think that there is a long way to go with this legislation, and that is the reason that the Australian Democrats have voted against this bill. It is not because we do not care about national interests or because we do not care about national security; it is because we are passionate about that and passionate about ensuring that we do not jettison some of the basic and fundamental human rights and principles on which our nation and democracy are founded. It is with a heavy heart that I make that explanation, but that is why the Democrats have opposed the legislation before us. We look forward to Senate support tomorrow for a Senate select inquiry into the broad-ranging pieces of antiterrorism law that have been introduced to this nation post-2001.

Question agreed to.

Bill read a third time.