George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

I commence the new year with a sense of deja vu, because in speaking to this theNational Security Legislation Monitor Bill 2009 [2010] my mind goes back to 2008 when I addressed remarks to a very similar bill which was introduced as a private senator’s bill by Senator Troeth and Senator Humphries called the Independent Review of Terrorism Laws Bill. They introduced that bill in the Senate after its original sponsor, the member for Kooyong, Mr Georgiou, was gagged by the government in the House of Representatives in seeking to debate the bill in the other place. Indeed, Mr Georgiou had barely uttered the words ‘on a bipartisan basis’ when the Leader of the House, the member for Grayndler, Mr Albanese, moved the gag. So had the Rudd government in 2008 set its face against the opposition’s proposal to establish an independent review of terrorism laws.

Lo and behold, some year and a half later the government has come to the opposition’s point of view and is proceeding with this legislation, which we will support on a bipartisan basis. The Senate was able to be convinced, because the bill was passed in this place, of the value of that legislation and, with the cooperation of the Greens, it was passed in the teeth of opposition from the government at the time. Naturally, the government maintained its negative stance when the first reading of the bill was moved in the House of Representatives on 24 November 2008 and it proceeded no further. So here we are, some 15 months after that debate, nearly two years after Mr Georgiou introduced his bill, the Independent Reviewer of Terrorism Laws Bill 2008, debating the government’s own legislation. I use that expression loosely because it can be hardly said to reflect the government’s own preferences.

The bill comes with a series of amendments, which the opposition will support. These amendments make this bill resemble Mr Georgiou’s bill in almost every respect, much more so than the initial edition of the government’s bill. It is almost two years since Mr Albanese marshalled the numbers to quash Mr Georgiou’s initiative, and quietly the government has adopted Mr Georgiou’s policy as its own.

The key difference between the government’s original bill and the regime proposed by the coalition is the notion of independence. In keeping with the approach of the Rudd government, the bill in its initial form required that the monitor be subject to the direction of the executive, personified by the Prime Minister. Any ad hoc inquiry would have been subject to prime ministerial approval. Any report deriving from it would be both secret, there having been in the initial bill no provision for tabling, and subject to executive micromanagement. Those provisions, I am pleased to say, following the recommendations of the Senate Finance and Public Administration Legislation Committee, have now been abandoned by the government. The government’s amendments address the coalition’s concerns raised in the committee and restore independence, which is central to the concept of this office. The opposition will, therefore, be supporting the amendments and, with the carriage of amendments, will be supporting this bill, which, for all practical purposes, is our own.

As I said in November 2008 in my remarks on the bill introduced by Senators Troeth and Humphries, the principle behind this bill is a protective principle. It is to add to the armoury of parliamentary surveillance another mechanism designed to ensure that the counterterrorism laws, which were amended so as to expand the executive and policing powers of the state in extraordinary times by introducing into our laws exceptional measures, are not allowed to become ordinary measures by the effluxion of time. The government and the parliament were of the view that some traditional protection should be reviewed and the policing functions of the state should be extended through such devices as preventative detention orders and control orders, which were controversial at the time, in the service of the fundamental obligation of governments and parliaments—that is, to protect the public interest.

Those of us who remember those debates also remember that the government which introduced them, the Howard government, made it clear at the time that these were extraordinary measures. This bill introduces an Office of the Independent Monitor, who, we expect, will bring an objective and detached mind to the question of both the functionality of the laws and the necessity for their continuance. This can only be beneficial and it has proven to be beneficial in other jurisdictions.

Mr Georgiou’s bill, on which the government’s bill belatedly is based, was itself inspired by the provisions of the United Kingdom, which created an office of independent reviewer of terrorism laws. In 2008, I travelled to London to meet with the Independent Reviewer of Terrorism Laws, Lord Carlile, with whom I had extensive discussion about the operation of the laws in that jurisdiction. Lord Carlile stressed to me that his independence and his power to conduct inquiries on his own initiative were central to his ability to discharge his functions and to maintain the objectivity required to perform those functions. Then last year, when Lord Carlile visited Australia, he once again met with me, along with Mr Georgiou and Senator Troeth, and we had further conversations which further informed the opposition’s attitude to this legislation.

My own discussions with both Lord Carlile and British national security agencies confirmed in my mind the belief that those agencies strongly supported the apparatus of an independent reviewer of terrorism laws but were also strongly of the view that such an officer would be merely a bureaucrat unless he were genuinely independent of the executive government. That is the fundamental difference between the bill as presented in its initial form and the bill in the form in which it will be amended following the urging of Liberal senators and of the opposition generally. With those amendments, which will entrench the independence of the office, the coalition is confident that the success in the United Kingdom in Lord Carlile’s office can be replicated in Australia. Subject to the amendments, the opposition therefore supports the bill.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I rise with a similar sense of deja vu. The Greens were very strongly supportive of the bill Senator Brandis has just been describing, the Independent Reviewer of Terrorism Laws Bill 2008, which was debated in this place at the end of 2008—well over a year ago. It has taken this long for the government to bring forward its model, which is described as the National Security Legislation Monitor Bill 2009 [2010]. I was working for Senator Rachel Siewert at the time that the main tranche of antiterrorism legislation was passed through the Senate at the end of 2005. Senator Brandis made a number of points on the way through about how the bill was debated—it was not really a debate; it was a guillotine undertaken in a hothouse environment where to speak out against the way that these laws might operate in practice was to be considered pro-terrorist. That, in fact, was one of the worst abuses, to my mind and my recollection, of the Howard government’s control of both houses of parliament. Essentially, the Senate was used as a sausage factory to ram this package of legislation through with consequences that we are still exploring, even to this day.

For all that I enjoyed Senator Brandis’s recollections about the reasons and the purpose of such an office, I just have to shake my head and ask: why on earth was such an office not included when these bills were passed in the first place, against practice in other countries that we would probably consider to be our peers, and against the recommendations of many people? But the Howard government knew better, and so the laws were passed. And still every word of them remains on the statute books to this day because of the very slow progress of the current government in unpicking some of the terrible precedents and terrible things that were put on Australian statute books at the time. We have no office of the terrorism reviewer precisely because the Howard government did not put one there. So now, five year later, we are beginning to unpick some of the damage that was done to the rule of law and to the fabric of statutes relating to terrorism and criminal activity, and violent crime more generally, in Australia. It should have been established at the time.

The UK, one of the countries that I suppose we might compare ourselves to in these sorts of matters, did include such a review mechanism when antiterrorism laws were passed there. Australia under the Howard government did not follow this model. Since that time, such an office has been recommended by the Security Legislation Review Committee chaired by the Hon. Simon Sheller QC—that was a report in June 2006—and by the Parliamentary Joint Standing Committee on Intelligence and Security in December 2006 and again in 2007, and in the government’s response to various reviews that was issued on 23 December 2008—an acknowledgement that such an office would be extremely valuable.

The Senate has contributed substantively towards this office through the October 2008 Senate Legal and Constitutional Affairs Legislation Committee inquiry into the private senator’s bill that Senator Brandis alluded to before. The passage of that bill in November 2008 was then killed by the government in the House of Representatives. It has taken them more than a year to come up with an equivalent. My party and I contributed to the work of the legal and constitutional affairs committee. In that case we took good evidence. We passed several amendments to the bill on the way through the Senate and sent a much improved bill to the House of Representatives that, if the Senate had prevailed, would have been passed on the spot. Of course, the government knew better.

Participants in that legal and constitutional affairs committee inquiry into the Anti-Terrorism Laws Reform Bill that I introduced into this place last year also called for the speedy establishment of this independent review mechanism to run in parallel with efforts to repeal some of the worst components of the terror laws. We have national security and intelligence agencies here working full time with these terrorism laws, with huge staffs and massive escalating budgets, and we have nobody in this case on the government’s payroll working in an independent capacity to assess whether these laws are necessary, whether they are proportionate or whether they are actually making any difference whatsoever, within the boundaries of the fact that there is a very broad suite of legislation that has many different effects and ramifications.

Some of these laws are so extreme and so redundant or otherwise inappropriate or offensive to the rule of law in this country that they should simply be repealed and not even be subjected to the dignity of a review. That was the subject of the private senator’s bill that I introduced last year and that then went through the committee process with, I must say, good work by the committee secretariat, including Peter Hallahan—who really will be missed, as Senator Barnett indicated earlier in a previous debate—but also with valuable contributions from government senators and from coalition senators into those measures that we introduced.

The laws, including things like those that allowed the Haneef scandal to unfold, relating to excessive dead time, undue surveillance and invasion of privacy, and the laws relating to sedition and matters such as reckless possession of a thing are also amongst the laws that quite simply should be abolished and not necessarily even be subject to a review.

Finally, the Senate contributed through the Finance and Public Administration Legislation Committee’s inquiry into this bill that we are debating today. That has resulted in the government taking on some of the advice from legal experts and organisations through a number of amendments. We appreciate at least that limited form of acknowledgement that they did not have it all in the bag in the first cut of that bill. Through that process that I am describing, through exhaustive and substantive work of numerous committees over a long period of time, and experts within and outside the parliamentary process, it is pretty obvious that there is widespread support for the independent review mechanism of these laws to come into existence—and not before time.

This office does have the potential to play an extremely important role in scrutinising the very large body of legislation relating to terrorism to ascertain whether they are necessary and whether they are proportionate and are actually meeting the stated objective of protecting Australians from violence and terrorist violence. Given the complexity of the laws and their far-reaching consequences, it is an extraordinary indication of the priority that the government sees this office holding that the function can be realistically achieved through one time position, supported by two staff, with very sketchy reporting obligations—I will be speaking more about that in the committee debate—and for the ability of the executive, who really should be the ones coming under the scrutiny of an office like this, to sanitise those reports well before they become public, if indeed they ever do become public.

While we are supportive of the office, and have been for a long period of time—and I hope that support is on the record—I have some very clear concerns about the model that the government is putting forward today; about the ability of this reviewer to actually undertake the functions that would be required of him or her. So we will be putting forward a number of amendments arising from recommendations of experts in the field, people who have been working on these issues for many years and following these debates very closely.

Steve Hutchins (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Order, Senators! Senator Ludlam, if you would like to continue, I am sure the senators are listening. I am anyway.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I doubt that, but I will carry on anyhow. Firstly, on the issue of staffing, the reviewer is to conduct an analysis of an enormous array of very complex terror legislation, review them every time they are used, or when the Prime Minister requests, or on the reviewer’s own motion. The staffing arrangement is not just modest, it is woeful—and I suspect deliberately so. Chair, I am just wondering whether Hansard has any idea what I am saying.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Mr Acting Deputy President, on a point of order: I know there are just 20 seconds left but Senator Ludlam should be heard. I cannot hear him from two seats in front.

The Acting Deputy President:

I ask my colleagues on the left, where most of the noise is coming from, to just quieten it down a bit while Senator Ludlam continues his remarks.

Debate interrupted.