Guy Barnett (Tasmania, Liberal Party, Chairman of the Scrutiny of Government Waste Committee) Share this | Link to this | Hansard source

Before I call Senator Ludlam, I advise senators in the chamber to remain quiet to ensure that standing orders are met.

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

Thanks, Mr Acting Deputy President; I appreciate that. When this debate was interrupted earlier, I was discussing the fact that the Greens certainly support the model that has been put forward. In fact, it is the model for a national terrorism legislation reviewer that we have been proposing for quite some time—and it is now five years overdue, so we are glad to at least see the National Security Legislation Monitor Bill 2009 [2010] turn up. But I am perplexed as to why the government thinks that a part-time reviewer working with two staff out of the Prime Minister’s office, with really sketchy reporting obligations and not much of a budget to speak of, is going to be sufficient to undertake the vast amount of work that is going to be required of this office.

The reviewer is going to have to conduct a very broad ranging analysis of an array of complex and sensitive terrorism laws, and perhaps review them every time they are used, when the Prime Minister requests it or when the reviewer chooses to on his or her own motion. The staffing arrangement, two staffers to support one part-time officer, is essentially going to cripple the office at the outset. I think that is the real risk here. It certainly speaks volumes about the government’s actual priorities for this office. They will be able to say: ‘Tick. That was an election commitment—there is something that obviously should have been instituted in the first place—but, by the way, we’re not going to resource it, so good luck to that office!’ As the demands on the monitor increase, obviously so too should the resources, and that is something we will be tracking very closely as the work of this office unfolds.

Independence was an issue that was raised by coalition senators and by us during the committee inquiries as we investigated various iterations of this bill. The government has at least seen the sense in highlighting the independence of the office: the word ‘independent’ is now in the title of the office. So that is something, because the independence of the office is vital if the exercise is to actually increase public confidence and balance terrorism laws. That is why we argued that the title should at least acknowledge that. We would have preferred the title ‘independent reviewer of terrorism laws’, but the government has not gone along with that.

The independence of the office needs to be not just in a name but also in the way that it operates. We believe there is merit in the office existing outside the Department of the Prime Minister and Cabinet. We expressed concern at the evidence provided by PM&C in the Senate inquiry that they already had specific staff in mind for the monitor’s office. So there is a process of hand-picking going on. No disrespect is intended to either the reviewer or the staff that the officers may have had in mind at the time, but we would prefer to see a process where the office can function with genuine independence in mind. We do not have any confidence at the moment in the quality or the quantity of independence of the office simply because of its placement within PM&C and the fact that is where the staff will be drawn from. We would rather have seen a much more broad-ranging process to recruit suitably qualified staff for this important office.

I am also very pleased that the government has recognised the need for Australia’s human rights obligations to be part of the reviewer’s mandate. For me, this is the biggest move we have seen so far on the part of the government, and I am very happy to acknowledge that at least it will now be an intrinsic part of the reviewer’s work to benchmark terror laws against Australia’s human rights obligations. We still have a couple of amendments to tighten up the wording and to make sure that it is absolutely implicit because, really, that is one of the primary functions of the office, in my view.

This exercise is about human rights and about achieving a better balance within the anti-terror laws between security and protection of civil and political rights, which in fact these laws really should be intended to protect. The Australian Greens have consistently sought to link the efforts of the review mechanism to Australia’s human rights obligations under the various treaties and conventions we have signed over a long period of time. One of the things that we will attempt to amend, and that I hope we see opposition and government support for, is that the Human Rights Commissioner should be able to make references to the monitor in addition to the Parliamentary Joint Committee on Intelligence and Security. We recognise the value of having a parliamentary joint committee being able to refer matters to the terror laws reviewer or monitor, and the Human Rights Commissioner should be able to do exactly the same.

One of the key issues that has been left undone and, as far as I am concerned, one where we will be able to make the most improvements to the bill as it sits before us will be around the reporting obligations of the monitor. One of the worst things we could be left with is an office, with barely enough resources to do the job, that reports to the Prime Minister and then some time down the track, at the Prime Minister’s discretion, sanitised reports may or may not make their way into the public domain. We know at the outset that this could be done in a much better way.

The Prime Minister can currently determine the order in which the reviewer attends to the workload, and that again goes to the independence of the office. The officer needs to be able to set his or her own priorities and not necessarily be hijacked by the political imperatives that come from the Prime Minister’s office. Even with the best intentions in the world, unless it is a much larger office, we think the monitor needs to be able to set his or her own priorities.

The only reporting obligation that the monitor will have—and the minister, during committee stage, may correct me on this—will be a heavily edited annual report. That may well be all that we see: an annual report that will come after being sanitised by the executive, by the government—and that surely is not the intention. That is not what was designed here and it is not what the public needs from this office. We believe that the monitor should be required to table a report and the government be required to provide the response within a period of 12 months. If the monitor has undertaken a particular piece of work, that should then be reported to parliament with national security sensitive matters removed by the monitor himself.

Guy Barnett (Tasmania, Liberal Party, Chairman of the Scrutiny of Government Waste Committee) Share this | Link to this | Hansard source

Order! There is quite a bit of background noise and it is making it hard to hear properly, so I will just ask senators to bear that in mind.

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

Thank you, Mr Acting Deputy President, I appreciate that. A large number of the amendments that we will propose further down the track in this debate go to the reporting obligations of the officer so that the public knows what the monitor is doing and also knows that he or she has been free from executive interference. We have enough agencies on massive budgets working behind closed doors on the issue of counterterrorism and national security. What we do not have yet is an officer with relative freedom to report as he or she sees fit on the operation of these laws.

In the broader context of how counterterrorism work and the process of law reform are going on in Australia, we are still waiting for a counterterrorism white paper. We have seen substantial proposals for law reform come from the Attorneys-General’s national security legislation discussion paper but there is an absence of a white paper that gives us the strategic direction and some insight into where the government is actually heading on counterterrorism law reform in Australia. We do not have the white paper, but we have been asked to accept a hefty national security legislation discussion paper which, in a way, was quite sketchy—it dealt with some issues and left some others completely unsaid. We believe, in essence, that the monitor should have occurred first. That is something this parliament could have dealt with at the end of 2008 with the private senator’s bill that Senator Brandis spoke of before. Then we should have seen a white paper, so that we would actually know where the government is heading, and then the proposals for law reform that can be properly informed in public debate. Instead, it is happening completely backwards, in the reverse of that order.

I will speak in much greater length during the committee stage about the Greens amendments, but I would firstly acknowledge, as Senator Brandis did, that the government has moved on this. It has accepted some of the recommendations of the committee, and that is always welcome. I have been involved already, in my brief time here, in enough committee work to know that really valuable cross-party work is done and it is always appreciated when the government has the courage to admit that it did not have all the right ideas and was not right 100 per cent of the time. There has been some movement, as I said, particularly in the area of human rights and the way that this agency or office will review human rights obligations. But there is still some work to do, and I intend to work with both the major parties and the cross-benches to make sure we get the very best out of this office that we can.

Because terrorism involves such horrific crimes, as a representative of a party of which one of the pillars is nonviolence, I have a very strong belief that we should do everything that we can to protect Australians and people overseas from crimes of terror. That should not be at the expense of providing for the human rights obligations that we are signatory to and the rights that we hold so dear. Counterterrorism laws are effectively designed to protect, in essence, our way of life, so we have been very concerned for a long period of time that those rights have been eroded by the operation of these laws that still rest, even today, on the statute books. We do not believe that there necessarily has to be that trade-off with the operation of really draconian and restrictive counterterrorism laws. We believe that some of these should simply be repealed without even the dignity of a review by the National Security Monitor. But most of all I look forward to improving this bill as it goes on its way through the chamber, so that we can get the office up and running with some proper resourcing and some really transparent reporting obligations.

Russell Trood (Queensland, Liberal Party) Share this | Link to this | Hansard source

One of the many profound consequences of the terrible terrorist attacks of 11 September 2001 was the need for governments around the world to assess their capacity to deal with this new and frightening threat of international terrorism. One of the needs, in many cases, was for the introduction of domestic legislation to try and deal with the new challenge that appeared. That meant in Australia, as elsewhere, quite a large amount of legislation which tried to provide a balance between the protection of rights that we treasure and civil liberties that we have taken for granted and the need for public and national security.

There is always a risk when governments act in a new area like this—particularly when they introduce quite wide-ranging legislation—that well-established civil rights, ones that citizens have enjoyed for a long period of time and take for granted, might be compromised. So governments have to strike a balance. They have to strike a balance between individuals’ rights—at least in a democracy they do—and the provision of national security, which is increasingly demanding. It is not an easy balance to strike. Terrorism is a profound challenge to this society and many others. It ought not to be underestimated. It requires governments to take measures which might not in the past have been acceptable to either the government or its citizens. But the Australian public, like other publics, are entitled to expect that a government will do all it can to provide for their personal security and the national security. That is what I think that much of the legislation which has been introduced in Australia does. It seeks to provide that level of security, that level of confidence, that we can meet the kinds of challenges with which we might be confronted. There is plenty of evidence in relation to the success we have had in meeting many of these challenges. That said, it seems to me that governments need to be cautious about the way they act in this area. They need to be careful about stripping away civil rights that are part of the fabric of our democracy and are the foundation of our freedom.

It is in that context that I particularly welcome this piece of legislation, the National Security Legislation Monitor Bill 2009 [2010], because it seems to me that this is a piece of legislation which has as its central purpose the creation of a safeguard, an independent reviewer, to ensure that Australia’s counterterrorism legislation is effective but also contains appropriate safeguards to protect the rights of individuals in this society. This is not a new idea. It is an idea which has been in practice in the United Kingdom for quite a number of years. The independent reviewer of terrorism laws is an office that has been in place in the United Kingdom for quite some period of time. By all accounts, it has been a successful innovation in the protection of interests. The work of the office is widely acclaimed. So we have a precedent which is being applied in this legislation. However, there are some important differences between this legislation and the United Kingdom legislation. Regrettably, some of those differences, in my view, make the office that is proposed under this legislation likely to be rather less effective than the office in the United Kingdom.

I want to look at some of the shortcomings of the bill, as I see them, in the short time that is available to me. Before I do, I wish to acknowledge the considerable debt that I think all Australians have, in relation to the protection of their civil liberties, to Mr Petro Georgiou, the honourable member for Kooyong in the other place. Mr Georgiou has a long and distinguished record of supporting human rights in Australia. It was Mr Georgiou, not the supposedly human rights oriented Rudd government, who first proposed that there be an independent reviewer.

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

Where did you get the idea the Rudd government was human rights oriented?

Russell Trood (Queensland, Liberal Party) Share this | Link to this | Hansard source

I have never been under any illusions about that point, Senator Brandis, but I think the government is probably under that misunderstanding. But Mr Georgiou was concerned about these things many years ago, long before the government actually thought this was an issue worth taking up. Indeed, when Mr Georgiou introduced his private member’s bill, the Independent Reviewer of Terrorism Laws Bill 2008, alluded to by Senator Brandis in his remarks earlier in the day, the government, with what might be seen as astonishing hypocrisy, refused to support the measure. Now, in a way which is all too typical of how the Rudd government operates, it has introduced its own bill and, regrettably—showing little grace—it has failed to acknowledge the considerable debt that it ought to acknowledge to Mr Georgiou for having introduced his private member’s bill. That said, I suppose one should be grateful that we are actually moving forward on this piece of legislation. I hope it will be—and it can be—an important innovation in the security field.

This legislation avoids some of the weaknesses of the United Kingdom legislation. It has been observed in the United Kingdom, for example, that the absence of a detailed listing of the functions and powers of the reviewer has been a shortcoming, and that has caused some difficulties. That has been avoided in this piece of legislation, and I know that you will be very familiar with this, Mr Acting Deputy President Barnett, having sat—I think I am right in saying—on the Senate committee that examined this particular bill. The bill also proposes sanctions, which are not available in the United Kingdom legislation, for those who fail to assist the monitor, and that seems to me to be an important difference between the two pieces of legislation. So there are some innovations here, some changes, some amendments which I think will strengthen the Australian legislation and make it more effective in achieving the purposes it is designed to achieve.

Regrettably, however, the Australian legislation fails to emulate some of the good examples of the United Kingdom legislation, and, I might say, some of the particular examples which were evident in Mr Georgiou’s legislation which was before the parliament. I noticed, and other speakers in this debate have made this point, that the government has introduced amendments, and to some extent that accommodates some of the concerns that the Senate committee that examined the bill noted in its report and some of the concerns that I have in the legislation. But regrettably, it does not go far enough in addressing those concerns, and Senator Ludlam has mentioned some of these matters in his own remarks earlier.

The most notable weakness is undoubtedly the failure to ensure that the monitor is a person of unimpeachable independence. This seems to me to be an elementary proposition in a piece of legislation of this kind. Instead of creating an independent monitor, the bill creates a position that seemingly will be located within the Office of the Prime Minister and Cabinet, apparently administered in large measure by the staff, and Senator Ludlam referred to the fact that there was an issue of resources here, which remains unclear, notwithstanding the government’s amendments to its own legislation. Witnesses before the Senate, as you will recall, Mr Acting Deputy President, criticised this aspect of the bill most consistently and made the point that this was the single most obvious weakness in the bill. The Public Interest Advocacy Centre made the point that there should be a new independent office completely separate from government, and that seems to me a rather important and sensible point. How can one be confident about the impartiality of this office if it is located within an existing executive portfolio? Surely it is an elementary principle that in setting up an institution to monitor government activity that the institution is itself independent of the government that it is supposed to keep honest. This particular piece of legislation fails this test. To my mind it represents a very large flaw and weakness in the legislation, which has not been corrected by the amendments which the government has proposed.

There is also a weakness in the reporting methods. I noticed that Senator Ludlam has also alluded to this matter. In fact the reporting methods contained within the bill are, to my mind, astonishingly convoluted. It is almost as though the government was determined, absolutely committed, to ensuring that the monitor was unable, or was intended to be frustrated in his responsibilities, to report the findings of his inquiries. This particular provision, which seems on the best of it to require a report by the monitor to the Prime Minister and subsequently the Prime Minister rather than the monitor reporting to the parliament, seems to me to be completely convoluted and completely unnecessary. The reporting requirements are also weakened by the fact that the monitor under the bill would seem only to be able to report to the parliament on an annual basis rather than when he is apprised of things which require attention within the legislation. Why this restriction would be placed defies explanation from my perspective and it is clearly a weakness in the legislation.

Creatively, I thought, the Senate proposed a solution to this problem by suggesting that there could perhaps be two versions of any report, one which was an unedited version for the Prime Minister’s eyes only, and a second edited version which might remove the sensitive material, which might then be placed before the parliament. Sadly, the government in its amendments has decided that this is a bad idea and it has refused to accept this particular proposal.

There are other shortcomings in this bill, some of which the government has addressed, others, sadly, it has not addressed. The narrow scope of the monitor’s role is something that Mr Georgiou has made a point of noting and I think also needs to be recognised. There is a limitation on the range of activities the monitor can undertake and that seems, again, an effort to try and constrain his particular activities.

There is also a restraint, an unnecessary limitation, in relation to the laws that are applied in the matter. The bill requires the monitor to give particular emphasis to the provisions of legislation that have been applied during the financial year or the immediately preceding financial year. So it would seem—and the explanatory memorandum makes this brutally clear, one could say—that the monitor’s powers only extend to those laws which have been used and applied in the previous 12 months. So that would seem to be a restriction on the legislation as well.

There was a suggestion in relation to international agreements. The legislation now suggests that in performing his obligations, undertaking his tasks, the monitor should have regard to Australia’s international obligations in relation to various treaties and protocols. This may be a worthy objective. I think the idea is worthy that Australia should comply with those international obligations to which it has become a party, but there is also a danger here that it might actually neuter, almost completely, the government’s power to legislate in an area of national security. As well, it might impose enormous demands on the responsibilities of the monitor’s office.

The government has already said in response to other proposed amendments to the bill that it does not favour them because it thinks they will place too much emphasis and too many demands on the resources of the monitor. The obvious solution to that is to make sure that the monitor has the resources that he or she needs to undertake his or her responsibilities. I guess we will see whether that actually occurs. I would not be too hopeful, I regret to say.

There is a point to be made here, which is that some international instruments do not yet apply to Australia’s domestic law. They have not been ratified into domestic law. Surely a second issue that deserves some recognition is the fact that the monitor is examining the implications of Australia’s national security legislation. His focus ought to be on the impact of this legislation on the quantum of legislation which applies in Australia. He should not be spending his time examining whether or not we are fulfilling our international obligations, which could be done elsewhere within the system.

With those reservations, I welcome this piece of legislation. I think it adds a necessary level of guardianship over the protection of Australia’s rights in this new area of legislation. It is likely to be an area of legislation which will increase rather than diminish over time. It is likely to be an area of legislation which will be controversial in the years ahead. Of course, it deals with a vitally important subject, which is the security of the nation.

In this context I think I should just reiterate and recognise the particular debt that we owe Mr Georgiou for having put this matter on the national agenda and taken the initiative in relation to the issue, which nobody else chose to do. Finally—and I am grateful for this—the government has seen the wisdom of the private member’s bill that Mr Georgiou put on the agenda and has adopted, at least in part, some of the ideas that are contained within that legislation. This would be a better piece of legislation were some of the other proposals for amendments in the Senate report to be accepted and were the government prepared to release the limitations with which it seeks to bind up the power of the monitor. I hope that before too long it might reconsider the way it is proceeding in relation to this matter.

In the final few moments that remain for me to speak, I take up Senator Ludlam’s point that we are still waiting for the counterterrorism white paper. The last time I asked about the counterterrorism white paper and the progress that was being made, I got a serve from the Attorney-General. He said that they would deliberate on the matter and that in due course it would be revealed. That, I think, was at least six months ago. International terrorism is a clear and present danger. It is arguably the single most important threat to this nation’s security and it is an issue which this government, regrettably, has failed to attend to with the diligence and concern which it deserves. We are all waiting for the counterterrorism white paper. Given the time that it is taking to produce, I hope it will be a damn good paper which will address the concerns which we all have about our security in relation to this important area.

Judith Troeth (Victoria, Liberal Party) Share this | Link to this | Hansard source

I rise to speak in favour of the National Security Legislation Monitor Bill 2009 [2010], a form of which was originally introduced by the member for Kooyong in the other place. I thank him, as other senators have done, for his unceasing vigilance in these matters. I am very glad that this matter has come to a degree of conclusion. That private member’s bill was subsequently reintroduced in the Senate by me and Senator Humphries as a private senator’s bill in June 2008, after the government had gagged debate in the House. That bill passed the Senate but went no further. I am nevertheless very pleased that part of the foundation of that bill has been incorporated into this bill.

This bill seeks to appoint a national security legislation monitor, who will assist ministers in ensuring that Australia’s counterterrorism legislation and national security legislation is, firstly, effective in deterring and preventing terrorism and terrorism related activities which threaten Australia’s security. As well, the monitor will ensure that legislation is effective in responding to terrorism and terrorism related activity, that it is consistent with Australia’s international obligations, including human rights obligations, and also that it contains appropriate safeguards for protecting the rights of individuals. After the events of 2001, a range of antiterrorism laws were introduced to combat the threat that terrorists posed. The need for such legislation was further strengthened by the subsequent terrorist acts in Bali and Madrid and the ongoing threat of al-Qaeda.

During that time there has been much public discussion of the impact of such legislation on the civil liberties of Australian citizens. Concern was focused on the invasion of privacy of innocent people and the diversion of government resources away from more realistic threats. This argument was given force by the cases of David Hicks, Jack Thomas and, particularly, Dr Mohamed Haneef. There were also a range of reviews, including the 2005 Sheller review and those by the Parliamentary Joint Committee on Intelligence and Security, in 2006, and the Senate Standing Committee on Legal and Constitutional Affairs, in 2008, all of which looked at the application of these laws, and all reported back with conclusions consistent with the aims of this bill. Additionally, the UNHCR also commented that some of Australia’s counterterrorism legislation appeared to be incompatible with the International Covenant on Civil and Political Rights. The concerns of this group focused around the vagueness of definitions of a ‘terrorist act’ and the ‘exception circumstances’ in the Crimes Act, as well as the reversal of the burden of proof and the expanded powers of ASIO.

The simple fact is that the government must balance the needs of a free, democratic society with the necessary actions to ensure its security. It is appropriate to have a mechanism that determines the effectiveness of counterterrorism measures and, more importantly, whether such measures impinge on human rights—that is, how to ensure the legislation fulfils the needs of our democratic society and our national security.

The opposition, under the very diligent guidance of Senator Brandis, had a number of concerns relating to how this bill would work in practice, as well as who could refer matters to the monitor and the vagueness of the definitions of the powers of the monitor. I understand that the government and the coalition have come to an agreement on these amendments and they have been incorporated in the legislation. Some of those concerns have been addressed, some of them have not, and those developments have been outlined in a very erudite manner by my colleague Senator Trood.

Nevertheless, I would like to thank Senator Ludlum for his cooperation on earlier versions of this bill. I think it is an important piece of legislation that will improve the effectiveness of our counterterrorism measures, will protect human rights and will instil a sense of confidence amongst the public in parliament’s counterterrorism efforts. I commend the bill to the Senate.

Debate (on motion by Senator Chris Evans) adjourned.