Terrorism (Police Powers) Amendment (Preventative Detention) Bill
Debate resumed from 17 November 2005.
Mr ANDREW TINK (Epping) [10.02 a.m.]: As shadow Attorney General, at the outset I have to acknowledge the fundamental opposition to the Terrorism (Police Powers) Amendment (Preventative Detention) Bill. I accept that both the New South Wales Bar Association and the Law Society of New South Wales have put considerable effort into their submissions and I thank them for that. However, I cannot agree with the thrust of their arguments; nor can the Opposition. In ordinary times the arguments they put forward would be very persuasive. The difficulty is that we do not live in ordinary times. I wish we did, but we do not. I am convinced that potentially and regrettably there is grave ongoing threat of a nature that is extremely difficult to detect and which is likely to morph or recreate itself in different guises. Increasingly the threat appears to be home grown, and paradoxically for that reason in some ways it also makes it much more difficult to detect.
The potential consequences of the worst types of scenarios that could occur—maybe not immediately but at some time down the track—do not bear thinking about. I think it was the former Premier, Mr Bob Carr, at a function recently, who first verbalised the unthinkable: that this type of threat might even extend to some type of dirty bomb or nuclear device, should one somehow become available somewhere. In these circumstances it is regrettable but necessary that the sort of legislation that is before the House is passed by the Parliament as a priority before the Parliament rises.
Liberal democracies like ours have faced maybe not these sorts of threats but they have faced very grave threats in the past. It is a matter of historical record that to meet those threats laws have been changed, laws have been tightened and some of the traditional legal safeguards have been suspended during times of crisis. I believe that was the case in World War I, and it was certainly the case in World War II, sometimes controversially. I spent a little time on the west coast of the United States of America and I know the community there, including many members of the Japanese-American community who are many generations longstanding. Whole families were interned during the Second World War for safety reasons and that decision rankled many. It is open to debate even to this day whether that decision was the right one. Nevertheless, the decision was taken
One of the features that distinguishes the community we live in and particularly distinguishes the other English-speaking Liberal democracies is that even if at times in the face of an extreme crisis the mark is overstepped constitutionally, when the threat passes there is strong historical tradition of winding back the draconian laws that were put in place to deal with the circumstances at the time. That is one of the hallmarks of what happened in the United States, in Great Britain and what has happened here. Other countries with less stable systems have a shorter tradition of democratic process where the very real concern is that once the threat passes the special emergency legislation is not repealed but is entrenched, and often entrenched to support a government which would not otherwise continue with the support of the people. I do not believe that is an issue here—history tells us it is not—nor is it an issue in other countries that are immediately facing the need for this sort of legislation.
That is the background and that is the attitude I have concerning this bill, which is certainly a very strong bill. It is noteworthy that the bill results from discussions between the heads of Australian governments where all Australian States and Territories have agreed to enact preventative detention legislation to complement the preventative detention scheme introduced by the Federal Government in the Anti-terrorism Bill (No. 2) 2005. The decision to enact the measures follows an agreement reached at a Council of Australian Governments [COAG] meeting on 27 September 2005. I think all Australian governments recognise the need for this legislation and that is reason enough to support it.
However, a few things done by COAG from time to time remain highly controversial and sometimes, on reflection, not always in the best interests of the community. I think we have to keep in mind with these COAG outcomes on this policy area that all heads of government receive briefings from their own police and security forces and intelligence gatherers, as does the Commonwealth, and then they swap that information. I think that COAG is broadly representative of a wide range of political views. The backgrounds of all the Premiers and Prime Ministers cover the full spectrum of mainstream political views across the broad Liberal Party and Australian Labor Party spectrum. They bring to bear a diversity of experience in democratic government in this country and that is weighed up with advice they receive from all Australian agencies to reach an agreement. I think especially in these times to some extent we have to take things on trust, perhaps more with this legislation than any other bill that might come before the House.
The legislation in the Commonwealth and other States is still a work in progress. Although not directly relevant to this bill, a very significant debate is going on in the Federal Parliament about the law relating to sedition. Although not relevant on this occasion, I do say that in general terms in these circumstances words can unfortunately be the most powerful motivators to violent actions. It is important to draw a distinction between words that on the one hand are intended and designed to do that and words that on the other hand are designed to be critical of government to keep it honest and accountable. As hard as it is, an attempt has to be made to draw that distinction and fashion the law accordingly.
The Opposition does not intend to amend or divide on this bill because we have to take the Government on trust in relation to these matters. However, I put on the record that I hope it does not come to pass that something happens down the track and we will look back and say we should have done things differently. I refer to the fact that this bill does not contain disclosure offences, as does its Federal counterpart. In the Commonwealth terrorism legislation such offences are designed to keep the making of a preventative detention order secret. The New South Wales terrorism bill allows the Supreme Court to make non-publication orders in relation to the proceedings, as is typical for all criminal matters before the courts in New South Wales. In contrast, subsection 105.38 (1) of the Commonwealth terrorism legislation makes it an offence for the person who is being detained to disclose the fact that a preventative detention order has been made in relation to the person, the fact that a person has been detained under the order, or the period for which the person is being detained under the order.
Under Commonwealth legislation subsection 105.38 (1) only prohibits the disclosure of information stated above, while a person is being detained. The offence does not prevent the detained person from disclosing information that the person is entitled to make under Commonwealth legislation under subsections 105.33, 105.34 and 105.36 or communicating with a lawyer for the purposes permitted. A possible gap in this bill may allow something to be communicated which could be very much regretted later, before the Supreme Court has made a non-publication order, whereas under the Commonwealth legislation that gap would not exist. Regrettably, it would appear that communicating the very fact that a person is detained could trigger all sorts of consequences communicated through people who are close to that person. Unfortunately, that is the nature of the terrorist threat we are dealing with. I do not propose to move any amendments. I hope that the gap to which I have referred does not result in something being communicated with terrible consequences that might have been deterred from being communicated had the Federal legislation been followed in that regard. With those comments, the Coalition supports the bill.
Mr PAUL LYNCH (Liverpool) [10.15 a.m.]: This is a bad bill. It is wrong in principle. It introduces internment. A person can be imprisoned without charge, let alone a trial or conviction, and that is wrong. It is certainly not as evil as the bill originally sought by John Howard and the Federal Government. Some provisions of the bill mitigate against its impact. It remains, however, wrong in principle. The position of Howard and sections of the tabloid media is to demonise the Islamic community in Australia. Howard has changed the principle of innocent until proven guilty. He seems to believe that the rule should now be innocent until proven Muslim. These laws attack traditional Australian freedoms and protections. They are corrosive of Australian democracy.
Many of my constituents have come to Australia to escape authoritarian and undemocratic regimes in their country of origin. They are uniformly horrified by the proposals now being enshrined in legislation. Many of my constituents, for example, from Uruguay and Chile, have recently said to me that Howard's terror laws remind them of what happened to them under dictatorships in their countries. These new terror laws are unnecessary. Many issues arise from the recent arrests of people allegedly guilty of terrorism-related offences. One clear moral is that we already have a plethora of laws which allow the police to apprehend, charge and detain people allegedly involved in terrorist offences, or even in, from the looks of it, pre-planning. That is certainly the view of many counter-terrorism experts.
Howard, through his dog-whistle politics and with the help of some elements in the tabloid media, is attacking and demonising the Islamic community. I find this personally profoundly distressing. I have significant Islamic communities within my electorate, from a plethora of countries—Lebanon, Palestine, Pakistan, India, Fiji, Kurdistan, Bosnia, amongst others. I am proud to say I know many Muslims in Liverpool, and am delighted that many of them are my friends. The overwhelming bulk of Muslims in Liverpool are dramatically better Australians than the owners of the tabloid media—and unlike some owners of the tabloid media, my constituents are Australian citizens. Moreover, Muslims in Liverpool for the most part are far better Australians than the Prime Minister. Targeting them, and demonising Muslims, runs the great risk of creating the very phenomenon one is trying to stop. Oppression, repression, and targeting runs the risk of quite stupidly creating what it is expressed to oppose.
There is, of course, a cry that we must follow international trends and that these laws are based on the English model. That is an important point and frankly highlights one of the great weaknesses of this present scheme. Britain, it is true, does have terror laws, although not as extreme as Blair wanted them. Britain also has a Human Rights Act, which, in a sense, is a Bill of Rights. It sets out a number of principles against which the terror legislation can be judged. If an inconsistency is perceived, an application to that effect, can be made to the court, and it was precisely through that mechanism in December 2004 that the Appellate Committee of the House of Lords gave adverse judgments about nine people detained under the Anti-terrorism, Crime and Security Act. Of course, while we get the repressive laws from England, we do not get the Human Rights Act. We get the draconian English laws but not the reasonable English protections.
The terror laws have a number of elements. They include the introduction of control orders, expanding the law of sedition, the introduction of what is euphemistically called preventative detention, which is better described as internment, and the extension of search and seizure powers. Control orders are modelled on apprehended violence orders [AVOs]. To suggest that terrorism can be combated by AVOs is fanciful. The most odious feature of the whole terror package now is the sedition provisions. The current Federal sedition laws are archaic and repressive. Some would argue that they are hard to actually understand. In any event they have not been used within living memory. There is a compelling argument to get rid of them altogether. Instead, Howard now wants them expanded. This must stifle public debate and cannot be good for our democratic structures.
If the aim is to prevent people inciting others to violence then the law should simply criminalise that, without all the political perspectives of sedition. Of course, any law would still pose dangers for those who in Australia supported Irish independence struggles up to 1921, the Vietnamese in the 1970s, Nelson Mandela and the African National Congress in the 1980s and Xanana Gusmao and the Timorese in the 1990s. Prosecutions for sedition have been associated with some of the most offensive periods and episodes in Australian history. It was used to prosecute the Eureka rebels in the 1850s. It was used against unionists and at least one journalist in the 1891 shearers' strike. It was used against Harry Holland successfully, and Tom Mann unsuccessfully, in the 1909 Broken Hill strike. Hughes threatened it against Mannix during the conscription debate in World War I. It was also used during the World War I against 86-year-old Monty Miller. Even more infamously, during World War I, it was used against 12 Wobblies—members of the International Workers of the World—including the brother of the legendary James Larkin.
The story of that corrupt manipulation is told brilliantly in Ian Turner's Sydney's Burning and is a useful reminder to people of what happens with the law of sedition. A law with such antecedents has no place in modern democratic Australia. Even the Federal Attorney-General has acknowledged problems with sedition laws and has promised a review next year. It is an act of either breathtaking stupidity or monumental hypocrisy to prosecute through Parliament laws that are so flawed that one needs to arrange to review them before they are even adopted.
Turning to the New South Wales component of the terror laws we come to internment. We do not have a bill of rights in Australia. One of the few protections contained for citizens in the Commonwealth Constitution means that Federal laws probably cannot allow for internment beyond 48 hours. So to get around this constitutional impediment to longer term internment, the State has to do the Federal Government's dirty work. Thus constitutional niceties are observed. No doubt the current bill is a significant improvement over earlier Commonwealth proposals. The improvement in this bill is very much to the credit of the Labor Premiers and this State's Premier and this State's Attorney General. It also reflects positively upon the work of the Criminal Law Review Division of the Attorney General's Department and Lloyd Babb. I also like to think it reflects on the efforts of a number of Labor backbenchers in this place.
Proposed section 26ZO is an important provision in the bill. Amongst other things, in a technical sense, it significantly expands the jurisdiction of the NSW Ombudsman. It also allows for substantial parliamentary oversight of the exercise of these powers. Shortly after the Council of Australian Governments agreement a number of public comments were made that New South Wales already had independent oversight bodies—the Office of the Ombudsman and the Police Integrity Commission. The inference seemed to be that the existing agencies, by their nature, would automatically be able to oversight the use of these powers. I think that argument was fundamentally flawed. As they currently exist the Ombudsman and the Police Integrity Commission largely focus upon investigating police misconduct and the misuse of power. What is needed, however, is not focus upon the misuse of powers by police—those investigations are generated by complaints—but a focus upon the ordinary use of these powers by the State.
Section 26ZO deals with this point. The section provides that for five years the Ombudsman is to keep under scrutiny the exercise by police or correctional officers of the powers in this bill. That seems a significant technical addition to the jurisdiction of the Ombudsman. The Ombudsman can, of course, use all of his powers, including his royal commission powers, in exercising his jurisdiction. I note that there is no similar expansion of the Police Integrity Commission's jurisdiction. A choice has been made to allow the Ombudsman, not the Police Integrity Commission, the regular oversight of these powers. Given the traditional roles of the two agencies, that seems to me appropriate.
The bill provides for the preparation of reports after two years and after five years, which are to be furnished to the Attorney General and the Minister for Police. The bill then says that the Attorney General should table the reports in the Parliament as soon as practicable. That is an inadequate formulation. I would have thought it should be tabled within 28 days of receipt. The omission of a precise time limit and the inclusion of the phrase "as soon as practicable" will facilitate potential delay, as has already happened with a number of other reports. That is certainly the view of the Ombudsman, which he gave in evidence in this place last Wednesday 23 November before the parliamentary committee on the Office of the Ombudsman and the Police Integrity Commission.
There is no restriction on what the Ombudsman can report on. That is important because sometimes there is an assumption that oversight agencies, in preparing such reports, must accept the public policy basis of the legislation concerned and just focus on purely technical aspects in review. I see no basis in this bill for the Ombudsman's role to be so circumscribed in this instance. As he made clear in the evidence he gave last Wednesday, he is not precluded from making any reports to Parliament, if necessary at any time he chooses. He is not restricted to giving formal reports at the end of two years and at the end of five years.
Additionally, this opens up a whole new field of parliamentary scrutiny in the exercise of these powers. The Ombudsman's office is subject to parliamentary oversight by the Committee on the Office of the Ombudsman and Police Integrity Commission, which, as it so happens, is a committee that I chair. Within its statutory authorities there seems quite a wide scope for the committee to oversight the way in which the Ombudsman monitors the use of these powers. I look forward, as I suspect do others, with some interest to see how this aspect develops. I know that the expectation in some quarters is that these powers will not be used frequently. The powers under the principal Act, the Terrorism (Police Powers) Act, have only been used once since their introduction in 2002. If this expectation were not met, the level of resources and finances provided to the Ombudsman's office would need to be considered. Indeed, if the use is extensive, the establishment of a separate stand-alone monitoring body will need to be considered.
Two other specific aspects of the bill require comment. The bill does not provide a definition for preventative detention. The bill allows an order to be made but does not say precisely what it will involve. The Attorney has mentioned that this means that a person who is subject to an order does not have to be held in gaol. They may, for example, be confined to home detention. On the true construction of the bill, that seems a possibility that presumably is meant as an ameliorative provision. However, that argument is flawed. The bill makes clear that the police will decide the type and details of the internment. I think it inherently unlikely that the police who seek an order would be content with anything other than incarceration in gaol. I would have thought that the cure is simple. The judge, not the police, should determine whether the detention occurs at home, in prison or elsewhere.
The bill also allows police to routinely monitor conversations between a person subject to an order and his or her lawyer. This is wrong in principle and bad in practice. It has been a very basic principle for a very long time that conversations between solicitors and clients should be private and not subject to eavesdropping. It is a principle that to this day applies to a whole range of people charged with a whole range of offences. Alleged multiple murderers, granny killers, paedophiles and so forth are all protected from having conversations with their lawyers monitored, but not people interned under this legislation against whom there is not even enough evidence to charge them. On any view, that is ludicrous. It is also a problem in practical terms. Court processes and quasi-court processes work far more efficiently if parties are represented by properly instructed lawyers. Under this bill lawyers will simply not be properly instructed. Their clients will be terrified of saying anything to them, and that will be to no-one's benefit.
The points that have been made about oversight of these police powers are important. The Police Integrity Commissioner gave evidence last Wednesday before the parliamentary committee that I chair. He made the point that surprisingly little work has been done previously concerning the oversight of and misconduct by counterterrorist bodies. The commissioner's phrase is that there was a lack of focus on this topic. We seem to be exponentially increasing the powers of counterterrorism bodies, yet very little attention has been given to the processes and methods of oversight in the use of those powers—that is of considerable concern; it is another reason to look very carefully at this bill.
Several years ago and for very good reason this State's special branch was abolished. Its legitimate functions were subsequently allocated to a new agency, the Protective Security Group [PSG]. This body was subject to a whole series of special safeguards introduced in legislation. That was perfectly fair and proper and was enshrined in legislation. However, subsequent to that legislation, new legislation was adopted to create the Counter Terrorism Command Centre [CTCC]. The CTCC took over all the powers and roles of the PSG, with even greater powers and resources, but the safeguards so proudly proclaimed for the PSG were left out of the legislation and were glaringly absent from the CTCC. I hope that the fate of those safeguards is no portent for what will happen to the safeguards in this bill.
Australian history has a strong strand of suspicion and scepticism about powerful government institutions and the dangers they pose to ordinary Australians. Vinegar Hill, Eureka, Ned Kelly, the shearers' camps, the anti-conscription campaign in WWI and the defeat of the Communist Party dissolution referendum are all part of that tradition. That tradition gives strength to the scepticism I have about this bill and, more importantly, its Federal counterpart. My scepticism is strengthened by the opportunist gyrations of the Prime Minister. In a grand rhetorical media event he claimed an imminent terrorist threat to demand an urgent legislative amendment from "the" to "a"—all very urgent, except he had known about it for at least three months and in his race to get to the media in the middle of the industrial relations debate he seems, in the view of many experts in the field, to be running the risk of damaging police surveillance operations and warning those against whom this legislation is supposed to be aimed. And when raids occurred recently one Tuesday morning, surprise, surprise, the media tagged along. I am told by one of my colleagues in this place that he was told by a journalist the weekend before that the raids would be occurring shortly. One is entitled to a degree of scepticism about the rush to introduce these new powers.
I should also note that there is still some considerable doubt about the constitutionality of these provisions. Despite a number of assurances from various people, it is undoubtedly the case that they are still likely to be subject to constitutional challenge. I would have thought that anyone who said that the constitutional question is clear is simply wrong. The safeguards are to be welcomed but the bill is wrong in principle. In the Sydney Morning Herald on 11 November the Attorney General was quoted as saying something to the effect that these laws were originally something of which Adolf Hitler would have been proud but they were now simply shithouse. I respectfully agree with the Attorney's view.
Mr DAVID BARR (Manly) [10.29 a.m.]: This bill is being introduced with indecent haste on the second last sitting day of the year. It is being introduced when the final form of the Federal legislation has yet to materialise. What is the rush? We should do what they are doing in Victoria: defer it until the New Year. I will be one of the few in the House to oppose the bill. Every member of the House should debate the bill, which is fundamental to the principles of our legal rights, political freedom, liberty, freedom of speech, and freedom of movement. This is the mother Parliament in Australia. Members of this Parliament should have a passionate and angry debate, and we should argue against the trampling of habeas corpus, which the bill does. It is astounding that not one single member of the Opposition will debate the bill. We should not allow legal principles to be compromised by expediency born of political manipulation, which is what is happening.
The Federal Government has introduced the Anti-Terrorism Bill (No. 2), which has a raft of obnoxious, repulsive and repugnant provisions that run counter to all our notions about Australia's basic democracy and what people have fought for over the years. Our Diggers went to war to fight for the principles of a democratic system. They may not have thought consciously about habeas corpus and legal principles, but they are the bedrock upon which our legal and political systems are based. They are the bedrock upon which our democracy is based. The bill will weaken those systems drastically. If Standard and Poor's were to rate Australia's democracy, which would have been triple-A, based on the Federal legislation we would be C-minus and based on the State legislation, which has significantly improved the Federal provisions, we would be C-plus. But that is not good enough. We are countenancing the detention of people who have not been charged with any offence, and that runs counter to the legal principles for which people have fought over many years and for which blood has been spilt.
As far back as the Magna Carta, it was said that a person who is made prisoner must have the right to be brought before a body so the case can be argued. We are trashing that simple threshold principle. I could debate all the various provisions of the bill, but I will not because we have crossed the threshold that we should not have crossed. An example of the diminution of habeas corpus in this country is the Cornelia Rau case, which sullied our reputation as a democratic society. She was an innocent detained in a system of mandatory and indefinite detention. It was sheer luck that she was found to be detained in that manner. We should strengthen the habeas corpus laws to ensure that people are not detained unfairly, that anyone who is detained has the opportunity to present their case, and that authorities must argue why a person should be detained. But we are going the other way.
To the credit of the Attorney General, the State legislation is a considerable "improvement", if that is the word, on the Federal Legislation. However, it is still obnoxious. Under proposed section 26D the police can apply to the Supreme Court for a preventive detention order to prevent a suspected terrorist attack or to preserve evidence of terrorist attacks. An ex parte interim detention order can be made for two days. The matter then goes back before a Supreme Court judge and the detainee is provided with a summary of the evidence, not necessarily all the evidence, of the case against him. The detainee should have the right to see all the evidence, subject to national security considerations.
Under proposed section 26O (2) the court is not bound by the rules of evidence. As the honourable member for Liverpool correctly pointed out, it is more than likely that the person will be detained in a prison. We can forget the notion of home detention in these circumstances. A person not charged with anything can be detained in prison for a further 12 days, which can be rolled over in various circumstances. Fortunately, and unlike the Federal legislation, this bill does not make it an offence for detained persons to disclose that they have been detained, which is welcomed.
In such proceedings the rules of evidence do not apply. The Supreme Court may take into account the evidence or information under proposed section 26O (2) that the court considers credible and trustworthy in the circumstances and, in that regard, is not bound by principles or rules governing the admission of evidence. It is highly unlikely that the crusty old Supreme Court justices will want to standardise what is meant by "credible " and " trustworthy". It is not defined. What is "credible" and "trustworthy"? I imagine that Supreme Court justices would not be too keen on this blurring of the Executive branch and the judicial branch. As the honourable member for Liverpool foreshadowed, there could well be a High Court challenge based on Kable's case. The notion that the court can exercise Federal jurisdiction is bound by chapter 3 of the Federal Constitution. It may well be challengeable. Eavesdropping on conversations between a legal representative and a detained person is obnoxious and runs counter to our notion of how the legal system should operate.
Recently we had a well-publicised series of raids and arrests under existing law. At the moment a number of different Acts probably cover all the circumstances we are talking about. The ASIO Act provides that the Attorney-General and then the issuing authority—a judge or an administrative appeals tribunal member acting in a personal capacity—can issue a compulsory questioning warrant or a warrant for detention for questioning, which has currency for 168 hours, with some oversight safeguards. Up to 30 June a compulsory questioning warrant had been used eight times, and probably has been used since then. However, I do not believe that anyone has been put in detention, but it is possible under the Act. The criminal code provides for conspiracy and enables police officers to arrest people on reasonable grounds if they suspect they are about to undertake a criminal act. Those grounds are similar to section 26D. Why do we need this extra, obnoxious legislation?
Under the criminal code the usual processes apply. Someone is arrested and charged. They then have their say and they go before a magistrate for consideration of bail. Under the proposed legislation people will be detained even if no charges have been brought against them. That is why it is obnoxious and that is why we should not flirt with it. We should resist it, and every member of the House should debate the bill. It is shameful if they do not. If we supinely acquiesce to such Draconian measures, if we are weak in defending democracy under the guise of being strong on terrorism, we give way to terrorists. If we go down that slippery path to be a more authoritarian State, they win.
I was brought up in South Africa. I know the regime of 90-day and 180-day detention laws. I know what a police state is all about. I know about arbitrary arrests and the Bureau of State Security. I know about internal passport laws—but perhaps I should not mention that lest the Federal Attorney-General become interested in internal passports. That is the next step. We are dealing with a very authoritarian Federal government, a government that is prepared to trash individual liberties, not in the name of fighting terrorism but in the name of expedient politics. It is bringing about a mood of fear in this country, which it can then use for its devious purposes: to bring in devious, but unnecessary, legislation. However, it probably helps to keep the Government in power because it says that it is being tough on terrorism. It is not. It is being weak and pathetic on democracy. This House should not go down that path.
The Prime Minister, among others in the Federal Parliament, once regarded Nelson Mandela as a terrorist. Who is a terrorist, and how do these things work? I shall give another example. In 1971, after two kidnappings, one of a British Consul official in Montreal, James Cross, and the other of the Quebec Labour Minister, Pierre Laporte, the Canadian Prime Minister, Pierre Elliott Trudeau, invoked the War Measures Act. Basically, that put Canada under martial law. There were troop carriers in the streets. Police in Quebec raided the equivalent of technical colleges and carted off anything that could be used for printing material. Student activists headed for the hills. Mayors in various towns and cities said, "Good, this gives us an opportunity to get rid of undesirables."
I make that point because Canada has a long tradition of tolerance and we should emulate it in many respects. Yet it was not long before people were saying the sorts of ugly things that are said when one starts to erode the basic processes of law and democratic principles. We must be wary and stringent in protecting our legal and political rights and those of other people, even if they are obnoxious to us. We must ensure that our system remains strong by making sure that everyone has their say in court and that our system goes through proper due process. The Act provides for humane treatment and so on. There is not to be sedition; and detainees will not be whisked off to Egypt for intrusive questioning or whatever. Nevertheless, we do not know what abuses could possibly take place.
The Federal Government is not prepared to allow David Hicks back into the country because it says there could be no charges brought against him under our laws. Mr Hicks has been in a state of legal limbo for four years. We do not know if he is a naive misfit or a hard-core terrorist. We do not know, because it has not been put to the test. Our country, our national Government, has acquiesced to perverted notions of extra territoriality on the part of the American Government. It is one of the most shameful episodes in our history. Yet at the same time we will be supine in following the Federal Government. We will acquiesce to what the Federal Government wants. Although the bill is a watered-down version of the Federal legislation it is, nevertheless, to our shame. The House should reject the bill. I believe that every member should have a conscience vote on it. I should like to hear the true conservatives fight for conservatism on this issue, because that is what it is about; it is about conserving existing legal principles. If the conservatives do not do that, it is a shame on them. And it is a shame on this House if it passes the bill.
Mrs BARBARA PERRY (Auburn) [10.42 a.m.]: In speaking on the Terrorism (Police Powers) Amendment (Preventative Detention) Bill I offer my commendations to the Premier and the Attorney General for their fortitude and good judgment in crafting the bill. In response to the Anti Terrorism Bill (No. 2) 2005 introduced by the Commonwealth, the New South Wales Government, as the representative of the people of this State, deemed it crucial to ensure that major safeguards were introduced on a number of key issues, including judicial review of control orders, and judicial merit review of preventive detention and shoot-to-kill provisions. In particular, I am pleased with the significant success New South Wales has achieved in instigating a fairer framework for the review of control orders, which allows for final orders to be made only after a hearing where both parties can be present and heard, and in providing additional power to the courts to require more information before making orders.
I applaud the key amendments applied to the test for making a preventative detention order [PDO], including the requirement that orders be made only for a reasonably necessary period and the limiting of the initial order to exclude those not engaged in the planning and preparation of terrorist activity. I note that the overall effect of the alterations will allow for a meaningful and genuine judicial review, which I welcome. Important also, although not immediately relevant to this bill, is the advocacy by Federal Labor for an independent agency to hold Federal police accountable for any questionable conduct, which would be further complemented by heightened parliamentary scrutiny to ensure that the new powers are not subject to abuse. Although there are other meritorious aspects to the bill that I could elaborate on, I feel it necessary to devote some time to giving voice to the sentiments felt by the people of my electorate of Auburn.
I say "necessary" because it is incumbent upon me to relay the force of feeling and the widespread distaste and alarm as expressed to me by the many and varied communities and peoples of Auburn. First, there are those, particularly the more keen observers of this debate, who find the whole exercise deeply regrettable and, more significantly, indicative of the Federal Government's growing contempt for the principles of justice and dearly cherished freedoms. Indeed, it is telling that the Commonwealth's bill in its original form was proposed in the first instance, and that in response we as a State Government had to fight to contain what is essentially a brazen attempt to eliminate basic rights and due processes. Although changes to industrial legislation may not be relevant to the discussion at hand, it is worth noting that the manner in which the Federal Government has seen fit to handle itself in this regard is further proof of its attitude towards the people.
Further to this, many people in my electorate and across the State feel that terrorism as a previously unheard of and unimagined possibility is only now allegedly real as a result of certain foreign policy decisions made by a government that blatantly disregarded the will of the Australian people, the international community and international law. Feeble attempts by Federal politicians to convince the public that we are hated for the freedom we stand for makes for bitter irony and reeks of the worst kind of hypocrisy. But the people are not so easily fooled. Second, in saying this, it is well recognised and understood by all multicultural and faith communities that steps need to be taken to vigorously deny those who would attempt to harm others even the remotest chance of achieving their aims.
In particular I am immensely proud of the Islamic community, which has come forward to strongly affirm the true, peace-loving nature of its faith and to denounce all who would lay claim to alternative violent interpretations. I can attest to this not only through my personal relationships with many in the Islamic community but also by virtue of the numerous open days and festivals I have participated in, along with others of many and varied ethnicities and religious persuasions. Given this, I am gravely concerned at the heightened state of angst and fear that is on the rise in the Islamic community. I am in no small way disgusted by what appear at times to be calculated attempts by some Federal politicians to exploit the anxieties and ill-formed views of some sectors of society which in some instances are prone to violent behaviour.
Just last week I received a phone call from a troubled leader of the Indian community who advised me that a sikh had been attacked by a few young men; they physically assaulted him whilst hurling abuse and accusing him of being a would-be terrorist. The attackers perhaps mistook him for a Muslim. The leader's response was to say that "it had started" and that they were afraid of an outbreak of such racial attacks. To speculate as to whether such a scenario is likely is perhaps not so much the point. The point is that it is essential that a great deal of respect, tact and integrity is used in handling such sensitive issues, and that at this time we continue to extend a strong arm of friendship and assurance to all, and particularly to the Islamic community, which is feeling vulnerable.
Third, with respect to the sedition aspect of the Commonwealth's Anti-Terrorism Bill (No. 2) 2005, there is widespread disdain at what appears to be a cloaked attempt by the Federal Government to silence its most vocal critics. Under the bill it is entirely conceivable that the right of individuals to merely protest could be severely curtailed and lead to punishing consequences. I have received strongly worded, passionate emails, letters and phone calls from a number of people, ranging from elderly Australians to students and community organisation heads, who are outraged at such a prospect. In particular, I note the anger relayed to me by families that have witnessed their loved ones put their lives at stake to defend the rights and freedoms that were threatened in the past by foreign powers. By allowing for, and refusing to eliminate, such possibilities in the bill the Federal Government is once again demonstrating its attitude of contempt for the will and free expression of the Australian people. It is essentially acting as a bully menacing those who would dare to speak loudly in a voice other than their own. It is a betrayal and an insult, and it is felt as such.
As a society it is imperative that we remain true to the principles that form the very basis of our moral fibre and humanity. When the temptation arises to deny those we deem a threat the same rights we afford ourselves we are most in danger of losing our identity as noble, honourable and just human beings. So, let us strive to keep intact our democratic institutions, due processes, and every other provision that allows each and every one of us fair and proper treatment. Failure to do so not only debases one and all but also sows seeds of resentment and discord that will threaten the unity and harmony that we have worked so hard to build to this day.
Ultimately as politicians we carry a grave responsibility to wield power in the interests of the people. It is incumbent upon us to ensure that we protect, nurture, listen and allow for full participation in the political, social, cultural and economic life and prosperity of our State and country. At this time it is critically important that any threat of terrorism is handled in a way most conducive to maintaining this obligation while simultaneously preserving and building upon the unity and harmony that has been established. I commend the Terrorism (Police Powers) Amendment (Preventative Detention) Bill for achieving a fair balance that I believe does not exist in the Federal legislation. I know that when the Federal legislation is enacted the landscape of democracy as we know it will change forever in Australia.
Mr BARRY COLLIER (Miranda) [10.52 a.m.]: I abhor terrorism. I loathe the sinister evil that currently stalks the earth, preying on the hearts and minds of decent, law-abiding men, women and children. There is not and never can be any excuse or justification for murdering or maiming the innocent. But that is what terrorism relies upon to spread its vile message of fear, hate and loathing. Many members know of someone in our community who has been the victim of or affected by terrorism. Along with the mayor, Phil Blight, and the Federal member, Bruce Baird, I spoke at the dedication of a memorial to those young men and women from the shire who were among the 88 young Australians who perished in the first Bali bombing. I shall never forget the impromptu laying of wreaths at Cronulla on the Monday after the bombing. I shall not forget the church services and the grief that was shared by every right-thinking Australian in the shire and across the nation.
Terrorism goes beyond the murder of the innocent and injuries to loved ones. Terrorism goes beyond the fear and grieving of families and communities. Terrorism seeks to undermine the values that all true Australians hold sacred. Terrorism is a cancer that seeks to eat away at the fundamental freedoms we enjoy. It is an attack on the foundations of our democracy. But, we do not preserve or defend our democracy by destroying its institutions, its protections, its conventions, its principles or its ideals. The moment we begin to chip away at our basic rights and protections we open the door ever so slightly to terrorists.
When we begin to sacrifice our fundamental freedoms we let the terrorists gain a foothold. When we start forgoing the principles of justice we begin to abandon the fundamental ideals that our forebears fought and died to preserve and to protect. When we begin to do this, the terrorists begin to win. Clearly, we must strengthen our laws to protect ourselves from potential terrorist acts, but we must be careful not to abandon the principles and protections that have been part of our democracy for two centuries and part of our heritage for more than 900 years.
A number of provisions in the bill cause me grave concern. In my view, some of these provisions breach protections that go back to the Magna Carta of 1215. I will speak about one. Any Australian charged or detained by police has a right to legal representation. That means being able to discuss freely, openly and in the strictest confidence with his or her lawyer the allegations and circumstances that brought him into custody. Based on the client's instructions the lawyer then puts the case of the detainee or the accused person to the court or the relevant tribunal. That is a vital and fundamental part of our cherished legal system.
It is an adversarial system in which the lawyer has a duty first and foremost to the court. He cannot knowingly mislead or lie to the court or tribunal. He is an officer of the court and has certain ethical rules that must be strictly followed and adhered to. These principles help to ensure the efficient administration of justice in New South Wales and in the Commonwealth of Australia. These principles ensure that justice, fair play and the rule of law are maintained. These are some of the time-honoured principles that underlie the fundamental freedoms we enjoy in our Australian democracy.
As one who appeared throughout his career as a solicitor and barrister for both the prosecution and the defence, I have grave concerns about provisions in the bill that require that contact with a detained person can only take place if it is monitored by a police officer. Clearly, this undermines the fundamental right of every Australian citizen to give instructions to his or her lawyer and obtain advice freely and confidentially. This provision—proposed section 26ZI—effectively ensures that proceedings will not be conducted efficiently and expeditiously. It also ensures that the detainee is effectively denied access to the legal system and therefore access to justice.
Those who argue against this will say the bill provides that such communications between a lawyer and his client, as monitored by the police, are not admissible in court. If that is so, what is the purpose of monitoring the conversation in the first place? The only answer can be to gain further evidence or leads which may be the basis of further investigation. If their conversations are monitored, the lawyer who asks questions of his client in fact becomes the investigator. How can a lawyer obtain proper instructions and effectively represent his client if the conversations are monitored by the prosecution? He cannot. How can a lawyer apply to the Supreme Court for the revocation of a detention order or a contact order without proper instructions from his or her client? He cannot. All the lawyer can do is advise his client that he is being monitored and that he has a right to silence. Sadly, he will probably exercise that right.
How does that assist in the efficient administration of justice? It does not. How does it encourage the detainee to be honest with his lawyer and perhaps even give vital information to police which may be useful in preventing further terrorist acts? It does not. The monitoring provisions effectively deny access to the legal system, which is one of the central pillars of our democracy. No doubt some will say that proposed section 26ZI (6) (d) imposes a term of imprisonment for up to five years on a police monitor or interpreter who discloses information, including a detainee's defence or instructions to another person. If that is so, why have these monitoring provisions? It does not make sense.
To compound matters, proposed section 26ZQ provides that the law in relation to legal professional privilege is unaffected. That is nonsense. The High Court has held that legal professional privilege is a fundamental human right, which goes beyond merely privileged communication to the proper administration of justice. If that is so, the provision is nonsense. It goes beyond the detainee simply disclosing anything to his lawyer, because he is being monitored. The provisions as to the monitoring of lawyers in my view do not serve the interests of justice. They do not assist in the investigation of potential or actual terrorist acts. They will not promote the disclosure of potentially crucial information by detained persons to police or investigators. By denying confidentiality of lawyer-client conversations these provisions prevent full and open discussions. They do not allow any lawyer to fairly present a case on behalf of his or her client. And in so doing they effectively deny the detainee access to the legal system. We did not even deny that to Ivan Milat.
The portions of the bill that permit the monitoring are of great concern to me and to many of my colleagues in the legal profession. They open the door on our institutions, our values and our principles—principles and values that underlie the fundamental freedoms we as Australians enjoy today. The provisions effectively chip away at the basic rights and protections that we have embraced for centuries, that our forefathers fought for and that we as a democratic and fair society should regard as inalienable. In my view the provisions breach the Universal Declaration of Human Rights and certainly, as has been held by the High Court of Australia, the provisions requiring the monitoring of conversations with lawyers overturns centuries of legal principle and set a dangerous precedent that, I am sorry to say, may come back to haunt us.
As for the sedition laws of the Federal Government, they are an absolute disgrace. I point out to members of the Federal Parliament that these are the very same laws—sedition laws—that the Roman Governor of the day, Pontius Pilate, used to give Jesus Christ to the mob after he said, "I can find no fault with this man." Lest there be any doubt, let me be clear that I support the thrust of the bill. We need to destroy terrorism, but we must be careful at the same time not to destroy or to undermine the fundamental rights and protections enjoyed by all Australians in the process.
Mr PAUL PEARCE (Coogee) [11.02 a.m.]: I will support the Terrorism (Police Powers) Amendment (Preventative Detention) Bill, but with great reluctance. I have reluctance on two grounds. Firstly, whilst this bill, introduced by the New South Wales Government, seeks to preserve some of the fundamentals of the rule of law and acknowledge fundamental principles, including the right to liberty, the right to have the deprivation of liberty tested before a court, and the presumption of innocence, it does facilitate complementary Federal legislation which has many offensive and extreme features. Secondly, if, as is argued by the Federal Attorney-General, the proposed suspensions of basic liberties contained within the Federal legislation are necessary to prevent home-grown terror then in a very real sense the terrorists have already scored a victory. Whilst it can be argued that one of the core functions of a state is to protect the security of its citizens, it is equally true that a state, particularly one based on democratic principles, has a duty to ensure the liberties of its citizens. It is a balance that cannot be dealt with in a cavalier fashion. An authoritarian state can notionally preserve the security of its citizens by use of repressive laws against dissent; a democracy cannot do the same. To quote the President of the Supreme Court of Israel, A. Barak, in the case of Public Committee Against Torture in Israel v The State of Israel:
This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open to it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the rule of law and the recognition of an individual's liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties.
The bill is limited in scope. In essence it addresses the period of preventative detention between the first 48 hours and the maximum of 14 days. It is the necessary complementary legislation for this aspect of the Federal legislation because the Commonwealth Constitution effectively prevents detention without charges being laid for in excess of 48 hours. In effect, the Howard Government has required the States to facilitate the circumvention of the constitutional constraints by a reference of powers. It is worth quoting Mr Justice Kirby in a paper delivered in October 2001:
The countries that have done their best against terrorism are those that have kept their cool, retained a sense of proportion, questioned and addressed the causes, and adhered steadfastly to constitutionalism.
To its credit, the New South Wales Government has not given the Howard Government the free hand to play fast and loose with basic civil liberties that it sought and that were contained in the draft bill put out, thankfully, for public information by the Chief Minister of the Australian Capital Territory. Unlike the draft Commonwealth legislation, the bill enshrines some protections for those persons potentially innocently accused. As stated by the Parliamentary Secretary in his second reading speech, the New South Wales scheme is judicial in nature—not administrative or personal as is the Commonwealth scheme. Only judges of the Supreme Court make both the initial preventative detention orders and final preventative detention orders. Unlike the Commonwealth scheme, which at no stage allows a hearing on the merits between the parties before the expiration of the detention, the New South Wales scheme allows, after the initial order, the person detained to be present with a right to contest the matter.
The contrast with the Commonwealth scheme, which contains a number of disclosure offences designed to keep the making of the preventative detention order secret, could not be starker. This recognition of appropriate judicial processes contained within this bill is to be welcomed. However, the protections within the bill should not blind us to the fact that persons detained under preventative detention orders have been charged with no offence, indeed may not have committed any offence—even under the dangerously broad definitions of terrorist acts contained in the Commonwealth law—and are being deprived of their liberty, in the first instance, on the reasonable suspicion of a designated Australian Federal Police [AFP] officer.
The term "reasonable suspicion" is disturbingly vague. On what grounds does an AFP officer form a reasonable suspicion? There is a very real risk that the practical effect of this wording will be a de facto racial or cultural profiling. In support of this concern I cite the effects of similar provisions in the United Kingdom that have resulted in disproportionate numbers of Asian and African persons being stopped, searched and questioned. There have been allegations that the London Metropolitan Police are, in effect, using racial profiling in the application of these powers. The other aspect of the wording "reasonable suspicion" is that for practical purposes a person may be deprived of their liberty, generally considered a sanction for a criminal act, on what is in reality the civil standard of proof. It is almost banal in the context of the Commonwealth legislation to refer to the provisions of statute 9 Henry III, better known as the Great Charter of Liberties of England, or the Magna Carta, that states, inter alia,
that no free man be taken or imprisoned or disseised of his freehold or liberties or free customs or be outlawed or exiled or in any way harmed, nor that our Lord the King should go upon him or send upon him save by lawful judgement of his peers or by the law of the land, nor sell or defer or deny right or justice to any man...
The bill, regrettably, contains a provision, proposed section 26AI, that allows conversations between a person subject to a preventative detention order and his or her lawyer to be monitored. This is a significant departure from the principle that conversations between accused persons and their lawyers should be privileged. It should be noted, however, that under proposed section 26AI (5) such monitored communication cannot be used in evidence in any subsequent proceedings. A further protection against misuse of any monitored conversation is contained in subsection (6). In addition, proposed section 26AF entitles a detained person to contact the Ombudsman and the Police Integrity Commission in order to lodge complaints about his or her detention. The police cannot monitor such communications. Proposed section 26AO enshrines monitoring of the exercise of the powers contained within this legislation by the Ombudsman. Again I draw the House's attention to the lack of any adequate oversight against abuse of process in the Commonwealth legislation, reliant as it is on the Commonwealth Attorney-General reporting to Parliament.
The bill further enacts a sunset provision, proposed section 26AS, 10 years after its commencement. The Federal Government resisted this provision; indeed, those parts of the Commonwealth legislation wholly under the legislative competence of the Federal Government contain no such provision. It is totally appropriate that laws enacted to respond to a specific set of circumstances should not remain on the statute book once those circumstances have ceased to exist. Such laws, if left on the statute book, have a potential to be used for purposes other than those originally envisaged. The bill does not contain the "lethal force" provisions initially desired by the Federal Government. Such provisions would have inevitably led to a tragedy of the type witnessed in London, where armed police gunned down an innocent man. Existing common law provisions and operational guidelines are more than adequate to protect a police officer exercising powers within the law.
It cannot be ignored that the bill has an undeniable impact on personal rights and liberties—both those within the common law and those recognised under international law. In summary, the bill, particularly when read in the context of the Commonwealth legislation, will impact on the right to liberty; the right to be free from arbitrary arrest and detention; the right to be presumed innocent until proven guilty beyond a reasonable doubt; the right to legal representation and to legal counsel of one's own choosing; and the right to confidential discussions with one's legal adviser.
As I have stated, this bill cannot be viewed in isolation from the Commonwealth legislation when considering the impacts on the liberty of citizens. The Australian Government is a signatory to the International Covenant on Civil and Political Rights. I refer honourable members to article 9, sections 1 to 5, of that covenant, which impose on the Australian Government obligations with regard to the right to liberty; not being subject to arbitrary arrest or detention; the right to be informed at the time of arrest the reasons for the arrest; and the right to be brought before a judge within a reasonable time. In addition, any person deprived of his liberty by arrest or detention is entitled to take proceedings before a court. Whilst a signatory government has a right to derogate from sections of the covenant in defined circumstances, as set out in article 4, such derogation must be necessary for the achievement of the purpose—namely, the derogation must be rationally connected to the achievement of the objective, and proportionate, and must impair rights to the minimum amount.
I put it to this House that the Commonwealth legislation, even in the form finally introduced into the House of Representatives, fails this test. I draw the attention of honourable members to those provisions pertaining to control orders. Even allowing for the changes in the legislation from the earlier draft, the Commonwealth legislation significantly impacts on the liberty of persons subject to these control orders. There is limited access to reasons for the order or the evidence on which it was based, and the nature of the provisions effectively reverses the onus of proof. It goes without saying that I doubt whether the Federal Government has considered the necessity, much less gone through the formal process, to derogate from its international treaty obligations. I expect it has not, given its generally dismissive attitude to international treaty obligations and multilateral bodies.
In the circumstances of the bill, and given its relationship to Commonwealth legislation, it is also appropriate to consider other aspects of the Commonwealth legislation. In particular, I draw the attention of honourable members to those provisions of the Commonwealth legislation concerning an expansion of the powers of the Australian Security Intelligence Organisation [ASIO] and the amendments to the Federal Criminal Code to include the offence of sedition. As I have already stated, given the complex nature of the relationship of this bill to the Commonwealth legislation, the impacts on civil liberties are cumulative. The significant expansions of the powers of ASIO are a case in point. Whilst the New South Wales Government has sought to include some provisions to respect the rule of law and give recognition to a citizen's basic rights of habeas corpus and the presumption of innocence, the amendments to the Australian Security Intelligence Organisation Act 1979 do no such thing.
These amendments, when read in conjunction with other changes to ASIO's powers since 2002, will see a massive extension of power and a consequent threat to civil liberties in Australia. ASIO now has extensive powers to raid homes or offices, take away suspects, interrogate and strip-search them and effectively hold them incommunicado, potentially indefinitely through the issuing of repeated warrants under sections 34A to 34Y of the ASIO Act 1979. The detainees need not be suspected of a terrorist offence if the Commonwealth Attorney-General so certifies, as provided for in section 34C of the Act. Section 34JB provides that if those detained seek to resist, force can be used against them and if persons refuse to answer any question or produce any material that ASIO alleges they possess, they face five years gaol. The Act effectively reverses the onus of proof. It should be borne in mind that ASIO previously had no powers of arrest or interrogation.
Unlike police prisoners, ASIO detainees have no right to silence. The December 2003 amendments effectively gag all public protest against or reporting of ASIO's use of its powers. Operational information is defined widely. It is now possible for ASIO to cover all of its operations in secrecy by obtaining a questioning warrant from the Commonwealth Attorney-General—a warrant I fear he would be all too ready to provide. Disturbingly, the current Commonwealth amendments to the ASIO Act extend these powers further particularly in relation to computer access warrants, and enhanced access to aircraft and vessel information, and further reverse the onus of proof in relation to a person's knowledge of whether a statement is false or misleading. Hence the defendant will bear the evidentiary burden.
No doubt there are many in the community who would argue that such powers are appropriate and would not be abused. Regrettably, even a cursory glance at the history of ASIO over its 60 years of existence would not support that confidence. Without going into its history in depth I would cite its questionable role in the Petrov defection; its intrusive role, under the guise of domestic intelligence gathering, against persons exercising their rights to freedom of association and freedom of speech during anti-Vietnam war demonstrations; its failure to properly advise former Attorney-General Lionel Murphy on aspects of the operation of right-wing terrorists; its still unexplained role in the Hilton bombing, aspects of which were raised in this House by several former and current members including the honourable member for Eastwood on 21 September 1995; its recently bungled raid that saw an innocent man and his family terrorised because ASIO had got the wrong address and then saw them destroy photographic and video evidence of the bungle; and its recent, ill-defined role in the expulsion of United States of America peace activist Scott Parkin, whose main offence seems to have been to lead protest actions against war profiteers, including Halliburton Corporation.
I will now turn to the other very disturbing aspect of the Commonwealth legislation, that of the inclusion of the antiquated offence of sedition into the Federal Criminal Code. This is covered in new section 80.2. In many ways this is the strangest and most disturbing of the legislative changes. Sedition by its nature concerns incitement to destroy or overthrow the institutions of the State. Terrorism, certainly of the nature currently confronting a number of Western nations, does not have as its objective the overthrowing of the State. On the contrary, rather than being directed toward the symbols of State power and government, it is directed, in a cowardly fashion, against civilians on an apparently random basis. The question therefore should be asked as to why sedition is part of this Commonwealth legislative package.
The Commonwealth's Anti-Terrorism Bill (No. 2) 2005 contains provisions that create offences for advocating the doing of a terrorist act. The definition of "advocating" inserted after subsection 102.1 (1) is designed to cover direct or indirect advocacy in the form of counselling or urging and providing general instruction on the doing of a terrorist act. It also covers direct praise of a terrorist act. The definition of advocacy is not restricted to the manner in which the advocacy occurs; it covers all types of communications, commentary and conduct. Given the breadth of this definition, combined with the wide definition of a terrorist act, there would seem little purpose from the point of view of achieving the Commonwealth's stated aims for the sedition clauses to be added to the Federal Criminal Code. The only outcome of the insertion of this antiquated offence will be to constrain freedom of speech, and legitimate criticism and questioning of government policy.
The wording of the provisions are such that legitimate opposition to the Vietnam war, support for Nelson Mandela and support for Fretilin in East Timor would all have fallen foul of these clauses. The so-called "good faith" defence is totally inadequate and places the evidentiary burden on the accused. The fears of many in the arts and media community and moderates within the Federal Liberal Party, and the fears expressed most recently in the report of the Senate committee, are fully justified. In conclusion, only time will tell whether the steps being taken today are necessary or are steps too far. Terrorism needs to be defeated, but to do so we need to be clear what are the causes of terrorism and our response needs to be proportionate. Further, rather than alienating communities and violating human rights, we should be working with and establishing relations with those communities whose support we need in dealing with political violence. Finally, I quote the United Kingdom-based Liberty organisation:
It is vital that these involved in dealing with political violence must be independently accountable to democratic scrutiny and the rule of law.
Mr WAYNE MERTON (Baulkham Hills) [11.16 a.m.]: I am pleased to speak to the Terrorism (Police Powers) Amendment (Preventative Detention) Bill. The object of the bill is to amend the Terrorism (Police Powers) Act 2002, which is the principal Act, to give effect in New South Wales to the decision of 27 September 2005 of the Council of Australian Governments that States and Territories introduce legislation on preventative detention of persons for up to 14 days to prevent terrorist acts or preserve evidence following a terrorist act in order to complement Commonwealth legislation for preventative detention for up to 48 hours. The Commonwealth legislation is an amendment to the Commonwealth Criminal Code set out in the Commonwealth Anti-Terrorism Bill (No. 2) 2005.
The principal features of the scheme for preventative detention orders in this bill are as follows. Preventative detention orders may be issued, on the application of a duly authorised police officer, in circumstances relating to preventing an imminent terrorist act or relating to preserving evidence of terrorist acts that have occurred. Preventative detention orders may be issued by the Supreme Court either after detention under the Commonwealth bill or directly without any such prior Commonwealth detention. The Commonwealth bill provides for initial preventative detention orders to be made by senior members of the Australian Federal Police for a period of up to 24 hours, and for continued detention for a further period of up to 24 hours to be authorised by continuing detention orders made by specially appointed judges, former judges and members of the Administrative Appeals Tribunal acting in their personal capacity.
Pending the hearing and final determination of an application for a preventative detention order, the Supreme Court may make an interim preventative detention order in the absence of, and without notice to, the person to be detained. An interim order remains in force for no more than 48 hours after the person is first taken into custody. A person may be detained under a preventative detention order that is not an interim order for a maximum period of 14 days. This maximum period is reduced by any period of actual detention under an interim order, another preventative detention order or an order under a corresponding law of the Commonwealth, or another State or a Territory, against the person in relation to the same terrorist act. Preventative detention orders may not be made in relation to persons under 16 years of age. A police officer or the person detained may apply to the Supreme Court for the revocation of a preventative detention order. The court may make a prohibited contact order that prohibits a person detained under a preventative detention order from contacting persons specified in the order.
I suppose the notion of terrorism in Australia is new to all Australians. It is a notion that certainly concerns the community, as we have seen horrific acts of terrorism overseas costing thousands of lives. Whilst it is Government legislation, the Opposition does not oppose it. I note that there are some differences between this legislation and that introduced by the Federal Government. The honourable member for Coogee spoke at length about civil liberties. He quoted a large number of authorities on the issue, and referred to entities and bodies that have an interest in civil liberties. I think very few people would not have an interest in civil liberty, and I believe it is important that in a democracy people are entitled to their civil liberties.
However, unusual and extraordinary circumstances demand responses that may not, in other situations, be appropriate. That is what this legislation is about. It is about meeting the threat of terror in Australia. Inevitably, when introducing legislation that gives extra powers to police, a balance must be struck between the rights of the State and the rights of the community at large. For many years the courts have wrestled with interpreting what is a correct balance between the rights of an individual and the rights of the community. I believe the legislation introduced by the Federal Government is for the greater good, to meet an extraordinary situation that concerns all Australians and that the Government must address.
Whilst some may think that the legislation places restrictions on people's civil liberties—undoubtedly it does—that must be balanced with the national interest. I believe that as legislators we must act responsibly. We have a duty to the people of New South Wales. Legislation such as this is necessary to ensure that measure of protection in very difficult and somewhat unusual circumstances. I suppose if someone had suggested 15 or 20 years ago that Australia would face a very real threat of terrorism, many would not have accepted that and would have said it will not happen. But the world since September 11 is a different place. There does not seem to be any sign of stability.
I believe that the decisions that have been made at the national level are the correct decisions, and that we have no alternative but to combat the threat of terrorism. A policy of appeasement, in the hope that terrorism will not happen here, simply will not work. We recall that in the 1930s—I read about it, and I saw it on video—Neville Chamberlain stepped off a plane, produced a piece of paper, and said there would be peace in our time.
Mr Alan Ashton: And he was cheered everywhere.
Mr WAYNE MERTON: And he was cheered. But a few months after that happened the Germans marched into Paris, and then it was all over.
Mr Alan Ashton: Chamberlain was a populist.
Mr WAYNE MERTON: Chamberlain was a populist who was unfortunately misguided. Appeasers might be popular but at the end of the day their record does not stand up to scrutiny. We all know about the harm and havoc caused by the Second World War. Hitler's rise to power and his plans received no setback through his dealings with Chamberlain. Neville Chamberlain, by omission, gave Hitler the nod that he did not have to do anything. After Neville Chamberlain produced the piece of paper that said, "Peace in our time", he added that Hitler had told him privately that once Germany's claims in Sudetenland were completed there would be no other claims. The honourable member for East Hills, as a historian, would no doubt agree with that.
The Opposition certainly does not oppose the legislation, which all Australians States and Territories have agreed in principle to enact. The legislation seeks to replicate, albeit with some differences, the Commonwealth legislation. Its object is to amend the Terrorism (Police Powers) Act 2002 to give effect in New South Wales to the decision to introduce legislation on preventative detention of persons for up to 14 days to prevent terrorist acts or preserve evidence following a terrorist act. This is to complement Commonwealth legislation for preventative detention for up to 48 hours. The New South Wales terrorism provisions are judicial, in that the initial and final preventative detention orders may be issued only by judges of the Supreme Court. Of course, a judge of the Supreme Court is a person of great judicial seniority. The Supreme Court is a body that is, I believe, held in high esteem by all people in New South Wales. Under the legislation, a Supreme Court judge would be empowered to make the initial and final preventative detention orders. The legislation is the result of a well-publicised meeting of the governments of all States and Territories. Premier Morris Iemma and all the other Labor Premiers attended—
Ms Linda Burney: There are plenty of them.
Mr WAYNE MERTON: Not for long! The wheel is going to turn and then it will be a different story. But we will not talk about that now. I get the impression that some Government members are very reluctant about supporting this legislation. I say to them: If you are reluctant about it, if you have all the doubts about it that you have indicated today, this is your chance to do something about it. Last week I spoke about a leap of faith. I challenge Labor Party members who believe this legislation is wrong, who do not believe in it, to exercise some gumption by voting according to their conscience. I think Government members are wrong in wanting to do it this way, but if they really do not believe in the legislation they should cross the floor and vote against it. For once we will join Government members. I challenge Government members to call a division. You do not have to be a Whip to call a division—
Ms Clover Moore: We'll be calling a division, don't worry about that.
Mr WAYNE MERTON: Thank you, Clover. The honourable member for Bligh is a person of commitment. I do not necessarily agree with her on a lot of issues, but at least she has the guts to stand up and vote for what she believes in. I think she is wrong, and I want there to be no dispute about that—
I will not mention the member by name, but it is very obvious from the tone of his speeches that he is being led along, with his hands behind his back, saying, "We really support this, but my hands are being held behind my back. There are a lot of problems with the legislation. It doesn't do this, it is too draconian, and there are lots of issues with it." But at the end of the day, what are Government members going to do? Are they going to support this legislation?
Mr Alan Ashton: Yes.
Mr WAYNE MERTON: Even though I detect that some members—I will not name any of them—do not believe in the bill. In a democracy they are entitled to hold that belief. Good luck to them, but we say they are wrong. We say that in the greater good, in the national interest, legislation like this is necessary. With the greatest respect I do not know whether Mr Acting-Speaker is enthusiastic about this legislation. I will just leave it at that.
Mr ACTING-SPEAKER (Mr Paul Lynch): Order! The honourable member for Baulkham Hills has been a member of this House long enough to know that he should not involve the Chair in bipartisan political debate. If he does so, he will be called to order.
Mr WAYNE MERTON: I know. Mr Acting-Speaker is a fair man. He and I seldom do not get on. If Government members do not like the legislation and believe it is wrong, they should vote against it. It is as simple as that. As an Opposition we will not oppose the bill. It is not our legislation. It is the Government's legislation, but the Federal Government came up with the idea. The Premiers met, they agreed, and the job now is to implement the legislation.
Ms LINDA BURNEY (Canterbury—Parliamentary Secretary) [11.30 a.m.]: As many speakers have already noted, the bill amends the Terrorism (Police Powers) Act 2002. I do not intend to analyse the bill. There have been some fantastic speeches in the debate, particularly from Government members. However, I do want to relate to the House the broad feeling of many people in the Canterbury electorate. Our basic role in this House is as lawmakers, and the bill is a challenge to every member of the House. In the last five or 10 minutes of his contribution the honourable member for Baulkham Hills made the point, in his typically way, that every member on this side of the House who spoke on the bill supported it reluctantly. That assessment is unfair because we speak on behalf of our constituents, believing as we do in decency, democracy and social justice. In many ways the bill tears at those tenets because the decision we make in relation to the bill comes from our hearts, but we must be pragmatic as well.
The bill fulfils the Government's commitment made on 27 September at the Council of Australian Governments [COAG] meeting. I enthusiastically and sincerely commend the Attorney General and his advisers for the role they have played. The Attorney's advisers from the Attorney General's Criminal Law Review Division are in the Chamber. They have done a magnificent job in implementing the COAG agreement in a more humane, just and intelligent way than the Federal Government. Terrorism is a challenging issue and it is clear that debate on the bill follows the position taken by the Federal Government. The general community finds that difficult to do. Members can see from the many pieces of correspondence received in their electorate offices that the community is extraordinarily disturbed and upset about the legislation. Members of this Chamber reflect the feelings of the community, and we have similar feelings. Chrissie Ianssen lives in Hurlstone Park in the Canterbury electorate. Part of her correspondence to me reads:
I wish to lodge my opposition and concerns over the counter-terrorism laws currently being considered by both Federal and State governments. These laws remove important democratic rights and in my view constitute a surrender in the war on terrorism. I condemn terror but I also condemn these laws that compromise our basic human rights and our democracy.
A moment ago I mentioned the role of the Attorney General and his department. Their approach is in stark contrast to the way the Federal Attorney-General is handling the issue. Although it may not relate specifically to the bill, I want to remind the House that Philip Ruddock got a standing ovation at the last Liberal Party conference for his record. His record includes the following: Tampa, Siev-X, children overboard, the administration of the Immigration Department, Rau and Alvarez Solon. That is his history. He has brought those matters into our community—not to mention fear, loathing and division. I strongly reject that sort of approach and I am pleased that it has not been the approach taken in New South Wales. Many members have spoken about the sedition provisions in the Federal bill, but I will not take up time talking about them.
Recently I had a discussion at a meeting of the Campsie branch of the Australian Labor Party with people who are primarily from an Arabic background. They are intelligent, thinking people who are very aware of this debate surrounding the bill. Many people who live in the Canterbury electorate have lived overseas. Because of their life experiences those people and their relatives and families understand what this debate is about. We look at the world today, we see what is going on in Zimbabwe and Ghana, and we see the way in which the leaders of those countries have abused and continue to abuse their citizens.
As we have heard, the first 48 hours of a suspect's detention is under the jurisdiction of the Commonwealth and New South Wales then has jurisdiction. Under New South Wales legislation detainees can at least call their loved ones, people with whom they share houses, work colleagues or employers to let them know what is happening to them. Nothing of that nature is being considered in the Commonwealth bill. Under that legislation, a person can be gaoled for revealing where someone is detained. Other speakers, particularly the honourable member for Coogee, have noted that if the proposed sedition provisions had been in place for the past few years many of the present leaders in this country would have been locked up, including a number of members of this House. I refer to members who were Communists, members who protested against the Springboks and members who have been gaoled. There is a touch of irony there.
The Federal legislation seeks to impinge on our freedom of thought, speech and association. That is disturbing. There are people in the Canterbury electorate from South America, Africa and pre-war and post-war Europe. They have had various life experiences and they understand the slippery slope that legislation such as this can put any country on. I am happy to see young people in the gallery today because this debate is about the way we see ourselves as a nation and the way we view democracy and how people should be treated. We are not happy about this legislation but we understand it is necessary. We accept that the Minister and the Attorney General have worked hard to make the legislation resulting from the agreement reached at the Council of Australian Governments meeting as humane and decent as possible. I reluctantly commend the bill to the House.
Ms CLOVER MOORE (Bligh) [11.41 a.m.]: The threat of terrorism means that we need to do everything we can to protect our community. We need to take the necessary steps to make sure that New South Wales is as safe and secure as it can be and that we can respond strongly if the need arises. For many years there has been a broad acceptance in the Australian community of a reasonable balance between law enforcement and individual civil rights. The very real threat of terrorism, with recent attacks around the world, means that it is time to reconsider the balance. But public debate is central in striking the right balance for our time, and I am very concerned that the debate on this new legislation is being rushed by the Federal Government and is now being rushed by the New South Wales Government.
In relation to community safety measures like closed-circuit television cameras, which can be extremely useful in preventing or investigating terrorist activity, I have no hesitation in committing the city of Sydney to working more co-operatively with the New South Wales police. But some aspects of this bill are far more invasive and more difficult to justify. Adequate public debate is essential before we agree to give away some of the human rights which are central to our way of life. We also need to ensure that these changes do not compromise our identity and character as a welcoming and inclusive community. This week I welcomed 500 people as Australian citizens and I talked about the Australian community being diverse and inclusive. With this legislation, I question whether I will be able to continue to say that. The real debate is to what extent we will allow the threat of terrorism to change our way of life and our view of ourselves as a community. I do not want Australia to become an insular, suspicious, divided and racist nation.
Striking the right balance in response to the threat of terrorism is what matters now. On Thursday 7 July 2005 four devastating bomb explosions in London tragically killed more than 50 innocent people and injured approximately 700 others. We have subsequently witnessed further attacks in London and many other disturbing incidents throughout the world, including recent terrorist attacks in Egypt and continued attacks in Iraq. The unforeseen and indiscriminate bombings in London resonated strongly with many Australians: the British people have a very special place in our history and culture, and the locations of the bombings are familiar to many of us. We have been shocked and appalled by the attack on London and its visitors, including Australians. My own daughter is overseas and I feared she may have been in London on the day of the 7 July attacks.
On Friday 8 July 2005 I sent condolences to Mr Ken Livingstone, Mayor of London, and to Mr Tim Holmes, Consul General at the British Consulate General in Sydney. On behalf of the people of Sydney I extended to them and their fellow Londoners our deep and sincere sympathy and our support for those injured in the attacks, for the service personnel dealing with the situation, and for the families and friends of those affected. I endorsed the vow of London Mayor Ken Livingstone that we will not permit terrorism to destroy our society and the peaceful multicultural make-up of our city.
When the Premier introduces legislation that he himself describes as "draconian", members of Parliament have a responsibility to be certain that the benefits of the legislation clearly outweigh the costs. We need to consider carefully whether there is a clear and imminent danger of such magnitude as to warrant our surrender of some important, long-held rights. So far we have been given little evidence of that. If there is evidence of such a danger, we have a duty to carefully assess whether the measures proposed will lower the risk of significant harm to people. However, there is no indication of how detaining innocent people will achieve that. Only with this information can we engage in a meaningful debate on whether the proposed loss of rights that has so alarmed my constituents outweighs the benefits that these extreme measures will supposedly bring. As George Williams, Professor at the Gilbert and Tobin Centre of Public Law, warned us several years ago:
We must not pass laws that damage the same democratic freedoms we are seeking to protect from terrorism.
For members who take this responsibility seriously, the first difficulty is that we are given so little time or information for making such crucial judgements. We have just witnessed the spectacle in Federal Parliament of rushed legislation being found to be flawed after the briefest consideration by a parliamentary committee. Now we are being rushed to pass New South Wales legislation that is complementary to Federal legislation that is likely to change before it is passed. The Government should follow the example of the Victorian Government and let its legislation wait until Parliament resumes in the New Year. We have been given no good reason to rush this legislation. The primary purpose of the New South Wales bill is to allow the internment of people who have committed no crime. They will not have broken one of the 21 pieces of new anti-terrorism law passed over the past four years. The police, using current authorisation powers, could have covertly watched and recorded their every move and contact. If they had made even preliminary preparation for a terrorist act, they could have been arrested. My constituents, too, worry about the lack of time and consultation over this bill. One stated:
The lack of consultation and the rush to get this legislation through Parliament smacks of ill-considered thinking and little care for the impacts on the Australian way of life and the Constitution.
Professor George Williams said:
It may be we've had a successful COAG meeting with all of the leaders, it may be the solicitors-general have had a good look at this, but it's just no substitute for democracy, it's no substitute for a proper debate in Australia where people get enough time to think about the issues, to talk about them in the media and in their communities, and to make sure that the politicians hear what they've got to say, and politicians ought to be responding to that type of debate, not just to what has been decided often behind closed doors in COAG and elsewhere.
The costs of the latest New South Wales terrorism bill are large, with the loss of some basic rights that we have taken for granted for generations and for which thousands of Australians have died in war. But the benefits are much less clear. My constituents are alert and alarmed about that loss of rights. Here is some of what they want me to say to Parliament. One constituent stated:
The freedom our country experiences is one of the most valued qualities we have. There will never be enough security laws to cover every possible risk to our country.
On the available evidence, it has not been shown that the proposed laws will help combat terrorism … The presumption of innocence, which is the core value of our criminal system, is undermined in the proposed legislation.
One constituent said:
This proposed legislation strikes at the very heart of our democracy—we specifically object to—the lack of burden of proof on government authorities.
Finally, another stated:
If Australia claims to be a Free and Democratic country, then instigating the draconian "anti" civil liberty laws under the guise of "anti" terrorism laws is surely an exercise in hypocrisy!!!
The bill has many suspect areas that deserve detailed consideration and I ask the Government to give us the necessary time to do so. The Public Interest Advocacy Centre [PIAC] is one of the few groups that have had the resources to examine the New South Wales bill in detail, as many groups are justifiably focusing their attention on the even more draconian Federal legislation. The PIAC's submission on this bill runs to 24 pages, with critical comment on 30 clauses, and several additional clauses proposed. I have an opportunity to highlight only some of the clauses of greatest concern to me. Rob Stary, head of the Victorian Criminal Defence Lawyers Association, said on ABC radio:
These new laws represent the most fundamental attack on the fundamental cornerstones of the criminal justice system. They remove the presumption of innocence, they remove an accused person's right to have the matter litigated in court, they remove the State's obligation to prove a case beyond reasonable doubt. And invariably, these cases are conducted in secret circumstances.
Under the bill's preventative detention powers Australians may face imprisonment without criminal charge. Freedom from arbitrary arrest and detention is a fundamental right contained in the International Covenant on Civil and Political Rights. With Amnesty International, I oppose any government detaining a person unless they are charged and prosecuted for a recognisable criminal offence. One cannot reconcile the fundamental notion of people being presumed innocent with people being detained without charge. Our criminal justice system must retain protections such as the burden of proof, standard of proof and rules of evidence. In this context I refer to what the Auxiliary Bishop of Canberra Goulburn, Pat Power, said in Online Catholics: an independent Australian e journal. In relation to the bill, Bishop Power said:
Anyone who is relaxed and comfortable about the proposed anti-terrorism legislation might care to read Chapter 23 of Luke's Gospel.
Jesus is dragged before Pilate accused of sedition. The trumped-up charges are laid but Pilate returns a "not guilty" verdict. The accusers become more insistent, so the cowardly Pilate orders a review, sending Jesus the Galilean off to be examined by Herod. The new trial simply shows up the shallowness of Herod's character. The upshot is Jesus' eventual crucifixion and two old enemies, Pilate and Herod, becoming good friends. It is amazing how anti-terrorism measures bring together unlikely allies!
It often occurs to me that the greatest enemy of love is not hatred but fear. There is no denying the climate of fear currently so prevalent in Australia and many other parts of the world.
It is in this climate that our country is facing a range of anti-terrorism laws which have wide-ranging, yet quite unclear, ramifications. Such is the atmosphere of secrecy that Jon Stanhope, ACT Chief Minister, is reprimanded for sharing with his constituents some of the details of the proposed laws.
Proper scrutiny of the legislation is inhibited by the unseemly haste with which it is being presented. This has been the objection of Jon Stanhope and the concern of the Australian Catholic Social Justice Council and many other thinking Australians. "Act in haste and repent in leisure" is their warning.
It is not enough of the Prime Minister to say "Trust me" and expect the rest of the population to commit itself to serious limitations on our human rights.
Nobody questions the need for measures to be taken to guard against terrorist attacks. What is questioned is the way we seem to be going about it.
The Jubilee Year 2000 heard the call for debt-relief for poorer countries locked into impossible burdens preventing them from providing their people with the basic necessities of life. The United Nations Millennium Development Goals present a further program which would enable the people of the world to share more equitably in its resources.
In the lead-up to the invasion of Iraq, I argued strongly that we should be talking more about a war on poverty and less about a war on terrorism. I am even more convinced today that it is only by showing that it cares about the welfare of all people of the world, that the West will persuade its "enemies" that it is serious about world peace.
Much of the U.S. approach is one of threatening and bullying (talk of "axis of evil" etc.) and it is little wonder that so much hostility is generated towards the Americans. Clearly Australia needs a robust relationship with the U.S. but we also need to distance ourselves from the extremism emanating from that quarter.
Bishop Power then refers to James Dunn, the former Australian diplomat and consul to East Timor, who has some sound advice. Bishop Power continued:
He advocates for "better diplomacy in relation to the root causes of the (terrorist) threat. By subordinating ourselves to the Bush Administration, we have become targets for many of its enemies. If Australia were to work more through the UN and regional security forums, we could become a lesser target for extremists, win more respect as an independent caring people, and at the same time play a more effective role in dealing with the causes of the terrorism that is troubling our world".
[Extension of time agreed to.]
Bishop Power continued:
Pope John Paul II frequently reminded us that there can be no genuine peace without underlying justice. We can hardly lay claims to living in a just world where there is such disparity between rich and poor people. Being serious about reducing that gap is surely a positive step towards harmony among peoples. In such a climate, terrorism becomes less of an issue.
I suggest to the House that we should be echoing what Bishop Pat Power has said this week; we should not be rushing this legislation rush today. I turn now to the detail of the bill. Under proposed section 26O, the rules of evidence will not apply in hearing an application for a preventative detention order. This means that hearsay and rumour can be presented to the court. Under proposed section 26P the court must be closed to the public, and the court can order the suppression of any evidence. Under proposed section 26H a court can issue an interim preventative order without the suspect being informed of the proceedings. Under proposed section 26ZA a police officer detaining a person under an interim detention order need not tell the person of the order if this is impractical, and the language can be vague.
Under proposed section 26Q, police trying to detain a person under a preventative detention order [PDO] can use normal powers. If the suspect tries to resist or escape, possibly because they do not know of the PDO and it has not been explained carefully, police could use force. As in Great Britain, the person could run and be shot. After all, the detention order requires that a terrorist act is imminent or has just occurred, so police will be very jumpy and suspicious. Under proposed section 26Y the detainee is to be given a copy of the detention order "as soon as practicable" after being detained. But the police officer detaining the person need only give a summary of the grounds; the supporting information can be withheld for national security reasons. Under proposed section 26X a detainee may be held in prison, although it is counter to international human rights law to hold a person in prison without conviction. Under proposed section 26R detention is supervised by a different police officer to that implementing the detention order, but not by an independent authoritative body such as the Police Integrity Commission. Honourable members should remember, as Rob Stary put it:
These people are all innocent, there is no suggestion that they are or have been engaged in some form of overt act... Now invariably, these things are going to be conducted in secret court. There'll be suppression orders, they'll be invoking the National Security Information Act, because of the very nature of the proceedings, that is, where it's said to represent some sort of threat to national security, nobody's going to know about these preventive detentions or control orders.
The situation facing children aged 16 or 17 years is equally disturbing. The bill breaches a different international human rights standard, the International Covenant on the Rights of the Child. I stand with the Women Lawyers Association of New South Wales in opposing all measures that aim to introduce preventative detention in respect of young people aged between 16 and 18 years when no criminal offence has been committed. As the association argued:
Not only would such measures breach the fundamental rights of children under CROC, it establishes a system which entrenches a lack of rights for some of the most vulnerable and powerless members of society.
Under proposed section 26ZH an adolescent can have only two hours contact with their family daily. I agree with the PIAC that an adolescent or a person with special disadvantage should be able to be accompanied at all times by an independent person, preferably a close family member. The new bill, with its ten-year life, does not even meet the conditions set down in the Terrorism (Police Powers) Act 2002, which requires the Minister to report to Parliament each 12 months on whether the legislation is still necessary to meet an ongoing terrorist threat. The bill should not be passed; if it is, the review period should be 12 months so we can amend and improve such rushed legislation. The Chief Executive Officer of the PIAC, Robin Banks, has called on the Government to delay the bill. He said:
There is no national urgency for this bill. The Victorian Government has given the community until February 2006 to consider the equivalent Victorian Bill, and the Federal Bill, which the NSW Bill is to work with, is not yet passed and may well be amended this week as a result of the Senate Committee Inquiry Report.
I concur that this bill should be referred to a parliamentary committee for close examination and public debate.
Mr STEVE WHAN (Monaro) [11.57 a.m.]: Like all my Government colleagues who have spoken today, I reluctantly support the bill. I am sure honourable members would agree it is regrettable that such legislation should ever have to be introduced into Australian parliaments. I have received a number of comments from constituents which I shall refer to in this debate. However, before I do so I acknowledge the contributions made by Government members and the in-depth assessment they have made of this bill and the Federal legislation. Many of them, in conjunction with the Attorney General and the Premier, also played an important role in ensuring that the New South Wales legislation is much fairer than we thought it might have been when John Howard started talking about such measures.
The people of New South Wales have been well served by the members of this Parliament who had an input into that, particularly those with legal experience, which I do not share. So my comments will not relate to the legal depths of the bill. I have received a number of emails and messages from constituents who are concerned about the way the terrorism legislation is proceeding in Australia. Many of them focus on the Federal legislation, particularly as it provides for the inability of people who have been detained to contact and talk to their loved ones.
I shall give a few examples. I received an email from Elenore Karpfen of Jerrabomberra. She was concerned that we would be following the lead of the United Kingdom and that these laws may be used at some stage to stifle dissent in Australia. I think she is particularly referring to the Federal laws. In a phone call, Russell Crouch of Queanbeyan expressed concern about the anti-terror laws, particularly the way minors were treated, and about laws relating to sedition, which again is an aspect of the Federal law. Ann Koeman of Thredbo talked about her concern about freedom of speech, sedition laws, and preventative detention. Those people are among a number who have contacted me and my office to express concern about the bill. The New South Wales Government has made a strong effort to include in its legislation safeguards that those people would be pleased about, even though they may not be pleased with the overall direction of the legislation.
Some honourable members have already highlighted the safeguards in the New South Wales legislation. I want to highlight the upper limit, the 14-day maximum period, of detention. One of the really fundamentally upsetting things about detention around the world—particularly in the United States of America—since the threat of terrorism arose is the way that Guantanamo Bay has been used to detain people without trial for years and years, and, for some, with no prospect of trial. It is a disgrace for a free democratic country like the United States of America to do something like that. It is an important achievement that the Premier has included in this legislation a maximum limit on preventive detention and that he has introduced a number of judicial review safeguards that the Commonwealth seems reluctant to include. That is important and should ensure that Australia does not see a repeat of Guantanamo Bay.
We can all sit back and say that Australia is different and that that will not happen. But we have seen John Howard's record with the detention of people in immigration detention centres for indefinite periods. We should never take any sort of freedom for granted in this country. The State legislation also provides that preventative detention orders cannot be made for people under 16 years of age. It extends much further, by enabling a person who is in preventative detention to contact family members, people they live with, their employers, and others. Again, that is very important, something the Commonwealth does not seem to be taking note of.
As I said, there is great concern in the Monaro electorate about what is happening with these laws. Recently I attended the Eden-Monaro Federal electorate council [FEC] of the Labor Party in Eden-Monaro, where a lot of time was spent discussing both the Federal and State laws. Members there expressed concern about where the Federal laws were heading and they carried a number of motions about the State laws. That was before this legislation was released, so they were not able to see it. Some of the protections in this legislation would have satisfied some of the issues raised by the Eden-Monaro FEC, but certainly the Commonwealth laws are still of great concern.
Most of the people who contacted me have expressed strong concern about the Commonwealth sedition laws. I am not going to go into them in detail because other honourable members have already done so very well and expressed their concern about the way these laws could be used. I have been concerned since this debate started, as have most members of this House, about the way Muslims in our community have been tarred with the one brush. There is not a large Muslim community in the Monaro electorate but there are a number of Australians of Muslim faith who are an excellent and very valued part of our community. They should not be tarred or smeared, certainly not to the extent of people reacting to their name because it sounds as though they come from a Muslim country. It is disgraceful to see that happening. The Commonwealth laws have even managed to raise the ire of the Daily Telegraph. When a conservative organ like that expresses concern about freedom of speech, the Commonwealth Government needs to take that into account.
Mr Michael Daley: A bit of self-interest.
Mr STEVE WHAN: Whatever the reason, it is nice to see that newspaper taking a stand on principle on this occasion. Australia has an important democratic tradition, and it is something we have been proud of. I suspect that many members of the Howard Government assume that Australians take the view that nothing bad can happen here, that no restriction of their rights can happen here, that it all happens to someone else. We must heed the lessons of history. Having a democracy does not always mean one's freedoms are protected. Some people wish to abuse the powers they are given. If the Federal legislation is not amended—if the Senate does not pass its amendments—it will likely be abused. Australians are right to express concern about that. I note also the strong attack by Malcolm Fraser on the Howard Government, and not just in relation to this legislation. He was critical of things like Tampa, and so on.
Mr Thomas George: Have you read Mark Latham's book?
Mr STEVE WHAN: A member of The Nationals is interjecting. I wonder where The Nationals stand, because so far not a single member of The Nationals has spoken on the bill. Do they have an interest in freedom in Australia at all? There are some important points about which the people in the Monaro electorate are concerned. The State legislation has gone a long way to meeting those points, although I understand there are still concerns. I place on record my continuing concern about the Federal legislation.
The honourable member for Baulkham Hills said that a lot of the bill has to be taken on trust. Most Australians I talk to are not willing to take John Howard on trust. We have seen the way he is willing to use whatever levers are at his disposal to get people to agree with his ideology. We see that through industrial relations. We see him using funding agreements to push people into individual contracts. Let us not be in any doubt that he will continue to use whatever levers are at his disposal to try to eliminate dissent from his position. That is why people are fearful of the laws the Federal Government is introducing. That is why they are right to continue to put pressure on John Howard to modify his legislation. I reluctantly endorse the State legislation. I congratulate the Premier and the Attorney General on introducing a number of important safeguards, and I congratulate my colleagues on this side of the House on their well-researched positions on the bill.
Mr ROBERT OAKESHOTT (Port Macquarie) [12.07 p.m.]: I am concerned about the Terrorism (Police Powers) Amendment (Preventative Detention) Bill, and I will oppose it. I do so, on balance, because of a couple of issues. One is that the substance of the legislation encroaches into many individual freedoms of movement, freedom of association and freedom of political communication that for so many years so many people in this country have fought and died for to protect. The second is process. The Commonwealth legislation is only now passing through the Commonwealth Parliament. This bill is supposed to function in parallel with the Commonwealth legislation. Other States, such as Victoria, recognise that and will not introduce their legislation until February next year. By pushing this bill through before the Commonwealth passes its legislation through its upper and lower House, our government is putting the cart before the horse.
I am concerned about our passing legislation before the Commonwealth does, and not only from a process point of view. This Government can be criticised for exactly the same reasons the Federal Labor Party Opposition criticised the Howard Government for the 24-hour process of pushing the legislation through the Parliament. Where is the difference? We are being asked to deal with the bill in an extremely quick timeframe despite the fact that the Federal colleagues of the New South Wales Labor Government have been incredibly critical of the Howard Government for providing only a very short window to debate its legislation.
This is rushed legislation. There has been no opportunity for members of Parliament to consult widely, both with our communities and with interest groups. I have had contact with only one interest group, the Public Interest Advocacy Centre. And that was only by chance: I bumped into its representatives in the corridors and had a five-minute briefing. I have not had the chance to go back to my electorate and to talk at length with my constituents. That would be the case with every member of this House. I have not spoken with a single policeman who has said that the existing powers in this State are not sufficient for police to do their job. However, I have had plenty of conversations with police about the lack of resources in New South Wales and the effect that has on their ability to do their job.
Dealing with an ongoing, imminent threat and a grave danger to all of us—and believing the Government's assumption, which I think it is fair, that there is an ongoing threat to all of us from acts of terrorism—is a resourcing issue, not a legislative issue, both in this State and in this nation. If the Government is going to deal with this as a priority, the priority is an economic one of resourcing, to enforce existing legislation and make sure that can be used by authorities to deal with the ongoing and imminent threat. The "on-balance" argument is that I have to give up some of my and my family's freedoms of movement, association, and political communication. I am unconvinced that we need this legislation passed by this place to deal with an ongoing and imminent threat that we are told exists.
I turn now to the substance of the arguments. I wish to counter some of the perceptions that sometimes float around this Chamber. I represent a Mid North Coast electorate, a coastal electorate outside the city. Contrary to some comment I have heard in this debate, my electorate does not have a large ethnic community or a large community of people from non-English-speaking background. But the substance of the bill is a threat not only to minority groups, which have been discussed and defended in this Chamber, but also to the majority of Australians. I speak primarily in defence of them today, as well as the minority groups affected. We will all fall on one side of the issue or the other, for example, on the constitutional freedoms that might be under threat. I reiterate that I am a strong believer in those constitutional freedoms. The best way to protect our democracy from any threat is to defend those freedoms strongly and protect them, whether from terrorists, gang rapists or murderers. Whatever the threat may be to our democracy, our best defence is our freedoms and our Constitution.
Earlier today I was concerned to hear members say there are times when it is understandable to flirt with the Constitution. They were not the exact words but that was the implied message. In many ways that is the point in this debate. I do not think there are times when the Government has the right to overstep the Constitution. We are a constitutional democracy and when we are under threat and challenged, our safe port of call is our Constitution. We stick by what was written by our forebears. That is where we go when we are in trouble. What we are doing today is in so many ways overstepping our Constitution and looking for a different port of call—government. A whole area of law deals with how government encroaches on the individual in our society. From a principled point of view this bill is not so much about terrorism or preventative detention; the principles behind it are about the government and the state encroaching into individual rights and freedoms. On balance, that is where my concerns lie.
I am a believer in the rights of all of us as individuals and our constitutional freedoms: of movement, of association and—the one that I think would be of particular interest to all members, and the one that there have been so many fights about in our short history as a country—of political communication. The point has been made that some members in this place would potentially have been affected if this bill had been passed 30 or 40 years ago. Potentially good members of Parliament in future may not have the chance to become members of Parliament—because they are in the clink as a result of this legislation. From my conversation with the Public Interest Advocacy Centre [PIAC] I wholeheartedly endorse its concerns and its "on-balance" argument that preventative detention orders offend the longstanding and well-founded principles that prevent the State locking away people who have not committed a criminal offence. It is an affront to Australian society and against everything we stand for if one of our citizens is locked up here without having committed an offence. The PIAC strongly argues that the bill is not necessary and that it offends rights and freedoms impermissibly.
No government in Australia has yet been able to publicly articulate why this model of coercive and criminal powers will be effective and, more importantly, why the powers are required. I refer to excerpts from the PIAC submission to the Senate Legal and Constitutional Committee dated 11 November 2005. I endorse the comments that were made to me in the corridors that the bill does affect longstanding principles. Control of Government Action, a book on administrative law and the control of government actions, is relevant to the debate today. I do not know whether members have referred to habeas corpus; I imagine some would have. The opening sentence of this book is powerful and is relevant to all of us today. It says:
The writ of habeas corpus has been called "the greatest of the great prerogative remedies", a writ with a grand purpose: the protection of individuals against the erosion of their right to be free and from wrongful restraint upon their liberty.
Surely that is what this debate and our focus should be partly about. We are challenging the individual liberties and rights of all Australians—not just minority groups but the majority of Australians. That will start a whole legal process.
There has been comment about Howard's legislation and how Howard likes to be compared with Menzies. Menzies tried to ban the Communist Party, and at that stage in history the High Court protected the freedom of this country. But history may well repeat itself: the High Court may be called upon to completely overrule this legislation, just as it was asked to do in respect of the Communist Party Act in the 1950s, and we may find ourselves reliving history. On balance, I do not buy the assumptions in this legislation. Speaking for myself and on behalf of my electorate, I am not convinced that terrorism is a new phenomenon. It is with regret that I say that terrorism and terrorist acts have been around for a long time, but the assumption behind legislation such as this is that we are entering a new and extraordinary era. The word "terrorism" may be new but acts of terrorism and the reasons behind them have been around for a long time.
I do not buy the assumption that we are living in extraordinary times. I believe that these are very ordinary times and I find it offensive to hear that we are at war. In my view we are a country at peace. It is almost disrespectful to those who have lived through war to compare those times with what is happening today. We are lucky to live in peaceful times, albeit with an imminent threat of terrorism on our doorstep. There is also the imminent threat of murder, gang rape and child sexual assault, and we—as a Parliament and as a community—need to be vigilant in dealing with each of those threats. It is for that reason that I say this is not a legislative issue but a resource issue. It is not good enough to simply attack our freedoms. We have to deal with this issue as a priority in order to protect the communities we represent. We should be doing all we can to protect and not hinder our freedoms.
Mr NEVILLE NEWELL (Tweed—Parliamentary Secretary) [12.22 p.m.]: I support my colleagues on both sides of the House who have contributed to the debate. This bill, as we have been told, fits hand in glove with the Commonwealth legislation. Essentially it relates to Australia's response to the global threat of terrorism—a threat that the honourable member for Port Macquarie says he does not agree with. I concur in some respects with his sentiments about what it means for Australia and what it should mean. The laws introduced into the Federal Parliament relating to control orders and sedition have been the subject of a great deal of debate and I do not propose to delve too far into them. However, we need to keep in mind that it is intended that our bill should work in conjunction with the Federal legislation.
This legislation is the result of an agreement reached at a meeting of the Council of Australian Governments called to discuss arrangements to deal with the terrorist threat that Australia is perceived to be facing at this time. Most people are of the view that the Federal legislation lacks balance, and I must say that it would appear that that is also the case with this bill. I am referring to civil liberties and the nature of Australian society that we have come to expect and wish to retain. With regard to the proposed sedition laws and control orders, of course no-one trusts the Howard Government. No-one trusts John Howard, because of his past track record, and I can understand that the general public are most concerned about it. Taking into account his record in regard to the Siev-X, Tampa, and children overboard incidents—
Mr Alan Ashton: And weapons of mass destruction!
Mr NEVILLE NEWELL: Yes, the weapons of mass destruction in Iraq and so forth, why would we take notice of anything he says? I will make a few comments about the bill, which has been described by a number of speakers as draconian. Proposed sections 26D and 26F deal with police involvement in the making of preventative detention orders. The sections contain very general statements to the effect that police must have "reasonable grounds to suspect" and about who may apply for such an order. It is obvious that Federal police may be involved, and that brings me to the reputation of the Federal police, and particularly the reputation of its head, who has made comments that can only be described as embarrassing to Australians generally.
The head of the Australian Federal Police has, to date, not retracted the comments he made at the time of the Schapelle Corby trial in Bali. In my view he would have been in contempt of court for his comments if that trial had been held in Australia. At the time of that trial he said that drugs were not being processed through the Australian airport system, and he has not retracted that statement, despite recent arrests in that regard. The head of the Australian Federal Police is someone we are meant to have a lot of faith in. It makes me wonder what sort of person he is, whether he is on top of his brief and understands what he is meant to do and not to do. I do not know whether he is a buffoon or just a patsy of the Federal Government.
Having said that, I will return to proposed sections 26D and 26F. We have to accept that preventative detention orders will be carried out in good faith and on good intelligence, and not merely to garner a headline. I believe that the bill is full of holes. As pointed out by a number of honourable members, some aspects of it make us cringe and cause us concern about where this legislation is going. For my part I am concerned about the holes in the legislation, rather than where it is going.
Proposed section 26X deals with the types of prisons in which detainees may be held. These are people who have not been charged with any offence. There may well be good reasons—and I certainly hope there are good reasons—for a person to be taken into preventative detention, but the type of prison is not specified. In the event that one of us were charged with an offence we would be taken to a remand centre. We would not be thrown into a prison with murderers and dangerous criminals, and we would not be carted off to the other side of Australia to be detained. It is regrettable that the type of prison in which a person will be detained is not spelled out in the legislation.
Proposed section 26ZM deals with the use and destruction of material taken for identification purposes. That is fine, if material and evidence is retained in New South Wales and is destroyed after 12 months, as in the case with fingerprints taken after the commission of a misdemeanour. However, I know, and all honourable members know, that under this legislation that person's identification information will not be retained within Australia. It will be sent to police forces overseas to be checked. I do not disagree with that course. What I disagree with is the implication in the section that such material will be destroyed. Everyone knows that once that material is sent overseas, neither the New South Wales police nor the Federal police will have control of it. It will not be destroyed, despite the fact that there are treaties in place. I see that as a mere sop to civil libertarians, something they would expect but something that will never happen.
Section 26W deals with the release of persons from preventative detention. This is another provision that is full of holes. The provision ensures that the identity of persons under preventative detention orders must not be revealed, which is important. Hopefully, it will mean that the media will not find out about the identity of such persons. However, when the preventative detention order is lifted and the person walks out of prison, if the Federal police or anyone else wants to run a media scrum on them, the media will be there. There will be nothing stopping the police or anyone else from informing the media that the person is about to walk out of the prison, police station, or whatever establishment the person has been detained in. That person will then face a media scrum and will simply be tried by the media, as we have seen in many other instances. I believe the legislation is deficient in not protecting persons who are released from preventative detention.
I do not agree with the oversight and sunset provisions. I believe that a sunset period of 10 years is too long. With regard to the oversight provisions, I point out that reports to Parliament over a 12-month period are far too long. The Parliament should receive a report every three months on any preventative detention order so Parliament has the opportunity to scrutinise the order. That can be done without revealing the identity of any person who has been the subject of a preventative detention order. I concur with the Attorney General's former assessment of the bill and the Premier's description of it as draconian legislation. This is not necessarily a response to what is needed in Australia to combat terrorism. After all, we already have police legislation in this State and federally which enables people to be questioned, to be taken into custody, and so on.
As the honourable member for Miranda rightly pointed out, people who are taken into custody will not be able to be asked questions about anything other than their identity. So the purpose of this legislation is not to find out anything about the activities of a person who is the subject of a preventative detention order, because under the legislation police will not have the power to interrogate them to find out that sort of intelligence. I agree that if a person is taken into custody, police should have the power to find out such information if required. I understand that under the present legislation, police already have those powers, and that they would be able to take a person into custody, interrogate them, and ascertain particular aspects of police intelligence in relation to a future, forthcoming, or past terrorist act. However, the irony is that when a person is taken into custody under this legislation, police will not be able to talk to the person; he or she will simply be detained. It will prevent people from being able to talk to other people who police suspect have untoward aims. For these reasons the legislation does not achieve positive outcomes on behalf of police and their intelligence work, which we expect them to be able to do.
In summary, I am grateful that we have men like Jon Stanhope, who was prepared to release the Federal legislation into the public arena so we were all able to understand exactly what the Federal Government and John Howard had in mind. I think everyone in the Austrian Capital Territory would vote for Jon Stanhope if they had the opportunity, because he is prepared to stand up for the people and for the ideals we have in Australia, and to ensure that people have the opportunity to debate and discuss legislation such as this rather than have it rushed through Parliament.
I wish to respond to the comment made by the honourable member for Baulkham Hills in response to an interjection by the honourable member for East Hills with regard to the nature of Neville Chamberlain's statement as he got off the plane and produced a piece of paper. I think we all understand that Neville Chamberlain was pandering to populist public opinion at the time, because the people did not want a war. Neville Chamberlain waved a piece of paper and said, "I have achieved it." The Prime Minister we have today is also pandering to populist public opinion in terms of cracking down on terrorists—which we do not mind him doing, but we do mind that he is introducing legislation that is unnecessary, superfluous, and not necessarily aimed at achieving the outcomes that we think Federal police, State police and other intelligence groups should attain in terms of protecting Australian society. I acknowledge that a division may be called on this legislation. In keeping with my status in the Labor Party, undoubtedly I will vote with this side of the House if a division is called. However, as most people would understand, if there were a conscience vote I certainly would vote with the other side of the House.
Mr TONY STEWART (Bankstown—Parliamentary Secretary) [12.35 p.m.]: In speaking to the Terrorism (Police Powers) Amendment (Preventative Detention) Bill I wish to relate to the House my concerns about the original framework for this legislation, which was put forward by the Howard-Costello Government. Thanks to the leading role of Premier Morris Iemma, along with other State Labor Premiers, we have managed to get this legislation into a form that is much more accountable to the community, with regard to the powers provided to police and intelligence agencies. Having said that, I am still concerned about the legislation, particularly from the perspective of the constituency of my electorate of Bankstown and the surrounding area, where it is clear to me that through the application of this legislation there may be the opportunity for stereotyping and also demonising of certain communities. I have seen this before and, unfortunately, will see it again as a result of this. We know that the finger is already being pointed at my local geographical area. That is unfortunate. I can inform the House that I am very proud of the constituents of my electorate, the majority of whom are law-abiding and family-oriented citizens. They certainly do not need legislation that will victimise or stereotype them.
The framework behind the legislation is important. Premier Morris Iemma has played a major role in ensuring accountability with regard to providing a judicial framework for the legislation. I am concerned that down the track we may not have the proper opportunity to amend the legislation where necessary, if we face situations that we simply did not evaluate or envisage resulting from the legislation. One of the leading journalists in Sydney, Alex Mitchell, wrote an article about this in his column in the Sun Herald last weekend. Alex Mitchell pointed out that Sir Winston Churchill—I am no fan of Winston Churchill or his politics—said that without the proper judicial processes in place, a society could well become totalitarian. Such a view, though perceptional in relation to the bill at this stage, could become real down the track unless the powers created by the legislation are kept in check.
As one of the legislators on the Government side of this House I support the legislation and will monitor it vigilantly. However, I will do so in the knowledge that we face the crossroads of a problem in the world that cannot be measured or defined, and I am not sure that legislation such as this will prove to be a preventative measure.
Mr ALAN ASHTON (East Hills) [12.38 p.m.]: With some reluctance I support the Terrorism (Police Powers) Amendment (Preventative Detention) Bill. The title says so much of what the bill is about: preventative detention to prevent an imminent terrorist act, or to preserve evidence following a terrorist act. I do not have any problem with the latter. Surely it is self-evident that the best way to prevent any crime is to detain everyone before any offence occurs. It seems quite simple to me. You simply round up everyone, lock them in gaol, and there will not be any more crime. You would not have to worry about the presumption of innocence, or whether anyone has actually done anything wrong. That is not meant to be a trivial comment or observation, but the point is apt all the same.
It must be recognised that the New South Wales legislation is nowhere near as draconian as the Commonwealth's original bill—so fortunately disseminated by Jon Stanhope, the Chief Minister of the Australian Capital Territory. It is worth remembering that the bill has been described as draconian by many and that Draco was a Greek ruler who had his laws literally written in blood so people would understand how serious he was about them. We live in a world where there is increasing terrorist activity being carried out against Western powers, particularly its innocent citizens going about their everyday business. But the word "terrorism" existed before 2001—before 9/11. Terrorism or assassinations have been used as political weapons for thousands of years. Clausewitz, a German general in the 1800s, said that war is politics by other means. I do not doubt that this is a credo that today's terrorist have taken up.
This is not the time or place to analyse what motivates terrorists to seek to justify their concerns or their objectives. While there are many informed people who understand some of these, the critical point is that we have a duty as Australians and members of Parliament in this place to protect our citizens as best we can. The views expressed today by most members who have spoken on the bill have illuminated concerns that these laws go too far in what has been described as the defence of our liberties, which democracy already protects. I need only refer to Legislation Review Digest No. 15 of this year, pages 20 to 39, which is the lengthiest review of proposed legislation we have seen by this joint, cross-party Legislation Review Committee. Paragraphs 6 and 7 on page 22 state:
6. The Bill trespasses, to a significant degree, on a number of fundamental rights and liberties. These rights are recognised under common law and international law.
7. The Bill trespasses on the following rights, each of which is addressed in the detail below:
• the right to liberty;
• the right to be free from arbitrary arrest and detention;
• the right to a fair trial, including the right to be heard, to present evidence and call witnesses in defence;
• the right to be presumed innocent until proven guilty beyond reasonable doubt;
• the right not to be compelled to incriminate oneself;
• the right to legal representation and to legal counsel of one's own choosing; and
• the right to confidential communications with legal counsel (the protection of legal professional privilege).
Page 22 is worth reading. At least our legislation is a great improvement on what the Federal Government has tried to introduce. There is a sense that the problem lies in the fact that no senior advisers, police, defence or security operatives who work in Canberra for the Howard Government are prepared to say what they believe in respect to terrorism, foreign policy or Department of Immigration matters. The honourable member for Tweed pointed that out very well. Commissioner Keelty said about 18 months ago that Australia was a likely terrorist target since our invasion and occupation in Iraq with the Americans and the Coalition of the Willing. And what happened? John Howard quickly called him in, dressed him down, told him not to be so silly and never to utter another word like that, and ever since Keelty has jumped on the bandwagon and towed the line.
Andrew Wilkie, the Office of National Assessment officer who blew the whistle on the children overboard fiction, was dismissed as irrelevant also. Interestingly, at the last election when he ran for the seat that John Howard holds, I think he nearly took John Howard to preferences. The Federal Government has certainly trumpeted this type of legislation that it has proposed. I understand that there is a genuine and decent element in the Liberal Party who are quite concerned, especially with the sedition powers. It is just a tragedy that we do not have the right to hand over those powers to the Federal Government because I think there would be then quite an uproar in this Chamber about that. Unfortunately that issue is completely locked up in the Federal jurisdiction.
But I think in about 1920 the Federal Government at the time dismissed a member of Parliament, Hugh Mahon, because he had the temerity to talk of an "accursed" empire. He was obviously Irish, the empire was not, and he was chucked out of Parliament. So even in Parliament just by saying, "Look, we don't support this legislation" or this war, or whatever, you can be seditious and, bang, out you go. It will be very interesting to see if the sedition laws get up as they are hoping in Canberra. As I said, the Federal Government has certainly trumpeted this legislation, but it introduced legislation some years ago, with Federal Labor support, as an answer to many of these threats. As everybody in this House knows, it is already illegal to conspire to kill or harm people, to destroy infrastructure, to plan to rob banks, to steal things, and to commit all sorts of fraud. It is also already illegal to partake in or plan a terrorist activity.
We saw that just a couple of weeks ago when a whole string of alleged suspects were arrested in New South Wales. I noted with interest when I saw that that nobody had rung me up as a member of Parliament and said, "Come along and watch what we are doing", but somebody had certainly got in touch with the police media unit to follow the troops out on the raids. Sure it makes good television, but the point is that I am sure it was a well-kept secret from most members of Parliament. But who is to say that a couple of police who were given that information will not ring someone and say, "Hey, come and watch this" or "You had better be out of your house before they turn up." It has been done before, as in the old days when the police would give a tip-off to the alleged criminal.
Are we in a position where we can trust the media to know there are going to be raids all across Sydney but we cannot trust the members of this Chamber to know? I am not saying we should know, but why is the media dragged along to be part of a raid? The Prime Minister is reverting to type. What he is doing is putting up a scare, putting somebody up to be very worried about it and then trying to divide the community along those lines. That tactic has worked in the past, but whether it continues to work is a little bit different.
The New South Wales bill was first sought by the Howard Government, and I thank the Attorney General and his staff who have worked very, very hard with the Premier and his staff to ensure that this legislation is not draconian. It certainly is restrictive and it certainly goes further than I would prefer it to go, but it is not as bad as it could have been. That is its only saving grace. However, it could have been worse if the original document that Stanhope put out had been allowed to survive. Opposition members opposite may not be aware that many members of this Government had a lot to do with some of the advice that has been given to the Premier's office and to the Executive Government on what would be acceptable and what would not be acceptable to them.
It should be recognised also that there are members of Parliament on both sides of the House and in Canberra who are not happy with the nature of the legislation. I have very little problem with what the honourable members for Manly, Bligh and Port Macquarie said; they spoke well, as did members on this side of the House. I make this final prediction, however—and I hope I am wrong: If we continually frenetically seek out so-called terrorists we will certainly find them. We will find them everywhere if we go looking for them, but not because they are terrorists; we will find them simply because the terrorist definition will be changed. If I stand up and say I am not really happy with this bill, potentially someone could say that Ashton doesn't fully support the bill and is a bit of a terrorist supporter. Such things will happen.
A news organ called News Limited—and I put the emphasis very much on "Limited"—is now prepared to defend the rights of some people because it fears that some of its journalists might be in trouble if they print certain things. News Limited has got on board after four or five years bashing us over the head about the need for draconian legislation and how we need to look sideways at anyone who dresses a little bit differently and the like, but it is now a bit worried that some of its journalists might get into trouble if they report something that is being done.
Another part of the bill that I just could not believe provides that people may be in trouble for passing on to their relatives information that certain things are going to happen. It made me realise that as my mother-in-law is in hospital and my father-in-law is in a nursing home, and neither of them is fully aware of what is going on, if I was dragged away and locked up for a couple of weeks incommunicado and not allowed to speak to them about it, they might pass away and no-one would know where I was. They could be left unattended and not fed, or their bills might not be paid. My kid could be at home ringing up the police saying, "I think my father has disappeared," and the Bankstown local area command would go out looking for somebody—anybody. In these situations one group of police does not know that a person has been locked up or kept under a detention order. These are just some of the realities of the legislation that could occur further down the track.
Under this legislation we will have to keep looking for terrorists. The Nazis kept looking for Communist sympathisers, and then they rounded up the Catholics, and then they rounded up the Protestants and the priests, and when they finally went to round up a few ordinary Germans who had done nothing wrong at all, those few ordinary Germans said, "Hey, where is everybody to save us?" Of course, there was no-one left who could help them, because, not being Jewish, they had not protested when the Nazis were first taking the Jews away and they did not care about the Catholics because they were not Catholics; they did not ever really believe in socialist policy so they did not worry about people being taken away. By the time they realised what had happened, it was all too late and there was no-one left to fight the fight.
I am glad that the traditional "ratbag" groups like the churches have spoken out on this legislation and on the workplace relations bill and have upset the commentators who write for the News Limited organisations. Terrorists will be found, but they will not really be terrorists; they will be stereotypical terrorists, people who look like terrorists according to the Anglo Saxon mindset. For some these powers will be politically useful. But we do not need in this country a new version of McCarthyist politics. I look forward to the movie, about to be released, about Ed Murrow and what he did to finally destroy McCarthy. We know that the McCarthyist politics were eventually discredited, followed by an inevitable backlash. Complacency will probably set in and, because we have cried wolf so often, no-one will be listening. With those comments, I support the bill.
Mr MICHAEL DALEY (Maroubra) [12.50 p.m.]: I support the bill and in doing so I congratulate the Premier, the Attorney General and Chief Minister of the Australian Capital Territory, Jon Stanhope, on struggling with and ultimately prevailing over a Commonwealth bill that is, and remains, unacceptable in many of its forms. My only regret in taking part in this debate is that I am helping somehow to perpetuate a debate that John Howard has used, unfortunately successfully, as a political tool. So I will be brief.
It is unfortunate, as many of the speakers have said before me today, that such laws have to be made but in my opinion they are well and truly necessary. Like many speakers before me, I am a lawyer. I have studied and I respect the history, traditions and safeguards inherent in our legal system in respect of personal liberties. I have heard today about the Magna Carta and the ancient writ of habeas corpus, and our democracy is right to revere and preserve the principles they underpin. However, sometimes extraordinary circumstances require extraordinary responses. The fact is that the Magna Carta, the writ of habeas corpus and all the other traditions and safeguards relating to personal liberties were not formulated at a time when evil persons had the capability to harm their fellow citizens on a large scale.
Despite what has been said in this Chamber today, mass murder by terrorism is a modern phenomenon. It is only some decades old. The honourable member for Coogee rightly pointed out today that democracy sometimes operates with one hand tied behind its back but democracy ultimately prevails over the evils that oppose it. My only concern in this debate is how long it takes for democracy to ultimately prevail. The practical consequences of democracy having its hand tied behind its back in the face of an imminent terrorist threat is that that could result in a delay, and a delay could cost lives.
The police have asked for and require this extraordinary power in these extraordinary times because the current legal system has the potential to hinder them in their protectionist role—and this is the vital fact. The bill is all about protecting ordinary people. One can talk about the rights of the accused and those under suspicion, but there are other rights too, such as the right to have dinner with one's family without being blown up in a restaurant, to go shopping, to catch the bus to work in safety, or not to be blown up when sitting at one's desk. These are fundamental rights as well. These laws are designed to protect those rights.
This is not hyperbole. I have had discussions with people who are in the know in respect of potential terrorism in Sydney and New South Wales. My discussions with them have led me to believe that there are people in our society today who would, if they were permitted, commit these types of acts. I am not simply talking about people of a particular racial or religious point of view. The Hilton bombings in the 1970s, and Timothy McVeigh and the Oklahoma bombings in 1995, are vivid examples that these are not just religious or racial zealots who sometimes wish to cause society harm. There are other types of zealots and extremists, and these powers protect society from them equally. This legislation, like many of the considerations that come before legislators in this Chamber, involves a balance. The Legislation Review Committee summed it up as well as anybody could, on page 25 of "Legislative Review Digest No. 15", when it stated:
The Committee is of the view that the right to liberty and the freedom from arbitrary detention are fundamental human rights and as such should not be derogated from except in extraordinary circumstances warranted by compelling public interest considerations and only to the extent necessary to meet those public interest objectives.
I am satisfied that the bill as currently framed, although its preparation was somewhat flawed and its deliberation is hasty, does react only to the extent necessary to meet legitimate public interest objectives. Most importantly, as a lawyer—and this is the most crucial aspect for me in respect of this bill—the bill provides for judicial review. The ideal working of this legislation relies on the professionalism of the police, supervised by senior judicial figures. As a citizen, as a legislator and as a lawyer, I have every confidence in those senior judicial officers to protect citizens that come before them. I note, finally, that proposed section 26ZC provides for the humane treatment of persons being detained. It states:
(1) A person being taken into custody, or being detained, under a preventative detention order:
(a) must be treated with humanity and with respect for human dignity, and
(b) must not be subjected to cruel, inhuman or degrading treatment,
by anyone exercising authority under the order or implementing or enforcing the order.
Ironically, the people who are detained under this bill will receive better treatment than the poor buggers who have been languishing on Ashmore Reef and other places that John Howard and Philip Ruddock have sent them to. As the honourable member for Canterbury and the honourable member for Auburn most commendably put to the House today, we must ensure that we do not become a racist, divided nation, but nor must we be supine in the face of an attack upon our wonderful society. I believe the bill treads the very fine line required in these extraordinary times and I remind the House of what the Minister said in his second reading speech. There is no doubt that these powers are extraordinary, but they are designed to be used only in extraordinary circumstances and are accompanied by strong safeguards and accountability measures. As a citizen and as a parent, I believe society will be a safer place with the police having been given the additional preventative and protectionist powers that are inherent in this bill and I commend it to the House.
Mr BRYCE GAUDRY (Newcastle—Parliamentary Secretary) [12.58 p.m.]: This bill is an attempt by the State Government to give a much better level of protection and a better level of civil rights to people taken into custody under preventative detention—much better than the draconian legislation put forward at the Federal level, about which my parliamentary colleagues the honourable member for Wallsend, the honourable member for Lake Macquarie and the honourable member for Charlestown, and I wrote in a letter to the Newcastle Herald as follows:
As Labor MPs we wish to state our strong objection to features of the anti-terrorism bills to be introduced in Federal Parliament. These bills attack traditional Australian freedoms and traditional Australian protections. They strike far more at our rights than against the terrorists they propose to deter.
We actually quoted in that letter the words of the Sydney Morning Herald editorial of 31 October 2005 as follows:
As it stands, its provisions strike straight at the heart of ordinary democratic rights and freedoms. It gags public debate, it empowers police to make people disappear and it punishes anyone who talks about their disappearance.
In short, it will reduce and limit the freedoms that this country has voted and fought for. The State Government ought to take as long as it needs to consider every detail of these frightening proposals, their constitutional implications and their impacts on our freedoms, and not sign up to the Howard agenda.
In the bill we have not signed up to the Howard agenda, and I commend the Attorney General and the officers for their work and for the provisions in the bill that strike a balance between the virtual imprisonment or holding without charge and the civil liberties of the people held. I am concerned about some aspects of the bill. First, it will still be subject to the Australian Security Intelligence Organisation Act 1979, which is the overarching power in this area. Paragraph (d) of the overview of the bill clearly states:
(d) A person may be detained under a preventative detention order that is not an interim order for a maximum period of 14 days. This maximum period is reduced by any period of actual detention under an interim order, another preventative detention order or an order under a corresponding law of the Commonwealth, or another State or Territory, against the person in relation to the same terrorist act [as defined].
Let us look at the provisions of the Australian Security Intelligence Organisation Act. The bill will uphold the civil liberties of a person by limiting what they can be asked and by whom they can be questioned, which will be subject to judicial review. However, I have been advised that as the Australian Security Intelligence Organisation powers override this legislation, persons may be detained under those powers; under the warrant they may be subject to seven days or 168 hours of questioning. The passage of 168 hours will start when the person is first brought before a prescribed authority under the warrant. The legislation then provides a series of time periods in which questioning can occur. The Australian Security Intelligence Organisation Act does not detail the extent of the questioning, but obviously it is much more invasive and detailed than the sort of questions a New South Wales authority may ask. Section 34HB (1) of that Act states:
Anyone exercising authority under a warrant issued under section 34D must not question a person under the warrant if the person has been questioned under the warrant for a total of 8 hours, unless the prescribed authority before whom the person was being questioned just before the end of that 8 hours permits the questioning to continue …
Section 34HB (2) provides that the questioning cannot continue for more than a total of 16 hours unless the prescribed authority before whom the person was being questioned permits the questioning to continue. Section 34HB (9) states:
Anyone exercising authority under the warrant must not question the person under the warrant if the person has been questioned under the warrant for a total of 24, 32 or 40 hours …
While the Government is doing everything in this bill to protect the rights of individuals, those rights will be subject to the powers of the Australian Security Intelligence Organisation Act. Therefore I am concerned that this legislation may simply be a post box in terms of the operation of the Act. As other speakers have said, there is concern about how these Acts and their operation will impact on views in the community about other people. I refer to my time on the Committee on the Independent Commission Against Corruption in the early 1990s. The committee conducted a hearing in Kyogle and people appeared before it. At that time the people in the community did not understand that it was an inquisitorial hearing, not an adversarial hearing.
Members of the community had difficulty believing that a person who had been cross-examined by the Commissioner of the Independent Commission Against Corruption was not guilty. I am interested to know how we will deal with the outcomes of preventative detention orders in terms how this legislation will affect the reputation of people who have been detained, found not to be held under the terrorism powers and then released. I simply make those points because I am concerned about the overarching powers of the Australian Security Intelligence Organisation Act. Considering the powers provided in the Act, I am concerned about the effectiveness of this legislation in preserving and protecting the liberties of people who are held under preventative detention orders.
Mr BOB DEBUS (Blue Mountains—Attorney General, Minister for the Environment, and Minister for the Arts) [1.06 p.m.], in reply: I thank honourable members for their contributions to this important debate. It is encouraging that so many members have taken such care with their speeches, demonstrating, if it needed to be demonstrated, that democracy is still a highly valued quality in this place. Terrorism presents our community with some hard policy decisions. The task that confronts us all is to meet the terrorist threat while still preserving the aspects of our society that mark us as free, open and democratic. There is no doubt that the bill contains some extraordinary powers. In commending it to the House, I reiterate the extensive safeguards that are in place to ensure that powers exercised under it strive for a proper balance and maintain our present standard of civil liberties and human rights.
Judicial oversight and the granting of preventative detention orders mean that the powers cannot be used in a discriminatory or arbitrary manner. The legislation takes special consideration of young people, who may not be detained if they are under 16 years of age, and provides special contact rules for persons under 18 years. Unlike the corresponding Commonwealth legislation, individuals held under the bill will be able to contact their families and employers, and inform them of their detainment. Also unlike Commonwealth legislation, the person detained may apply to the Supreme Court for revocation of the order. Penalties are in place for failure to advise individuals of their legal rights or for treating them in an improper way. Most important, under our scheme a hearing between the parties on the merits is required before an order can be finalised.
An individual detained under the bill may not be questioned for any purpose except to establish their identity or to ensure their health and wellbeing. There is an express right to contact a lawyer as well as the Ombudsman and the Police Integrity Commission, and to be informed of those rights. A person being detained must be treated with humanity and with respect for human dignity, and will never be subject to cruel or degrading management. High standards of independent review will be ensured by the scrutiny of the Ombudsman, who is empowered to evaluate the exercise of powers conferred under the bill and who can request information from any public authority on the use of those powers.
Annual reports will be given by the Commissioner of Police to the Attorney General and to the Minister for Police on the use of police powers and the number of orders granted under the bill during the year. The legislation sunsets after 10 years. These strong measures are being implemented in every Australian jurisdiction. They are extraordinary powers, and it is my sincerest wish that they will never be used. At their core, however, is a desire to protect and preserve our society. The Government has received a number of submissions from various bodies in relation to this bill. Those bodies included the Bar Association, the Law Society of New South Wales and the Public Interest Advocacy Centre. The Government has also had the benefit of an extensive report from the Legislation Review Committee.
I foreshadow that in consequence of the submissions, the Government will move a number of relatively small amendments in Committee. It is worth emphasising that the answer to many of the finer drafting issues raised by the submissions that the Government has received is that New South Wales has been obliged to implement a scheme that was based largely on a draft initially produced by the Commonwealth. I believe the Government has taken many steps to improve the basic scheme for implementation in New South Wales. Nevertheless, we were working within the framework set by the Commonwealth and based on the Council of Australian Governments agreement of 27 September 2005.
I propose to raise only one other issue now. That is the matter given some prominence in the media this morning in consequence of remarks made by representatives of the Bar Association and the Law Society concerning so-called rolling warrants. A number of submissions have raised the possibility of cumulative or rolling warrants. I make it clear to the House that the aim of this preventative detention scheme is not to provide the ability for law enforcement agencies to keep a person in a constant state of preventative detention. Proposed section 26K is designed to prevent rolling warrants. However, it is difficult to justify on policy grounds the complete prohibition of a second or subsequent order in relation to a particular person where the rest of the test, which is set out in proposed section 26D, is met, remembering that the test requires the reasonable suspicion that the detention of the person will prevent an eminent terrorist attack.
A number of strong safeguards will count against the use of rolling warrants. Those safeguards are that these orders will be overseen by the Supreme Court, the requirement that each application must contain details of previous applications and orders, allowing the Supreme Court to detect improper use, and, most important, the fact that a person who appears to be intimately involved in an imminent terrorist attack will be charged with a substantive offence rather than preventatively detained. Those concerns that have been expressed about rolling warrants, although understandable, have been sufficiently answered by those observations. I have already indicated that a number of amendments will be moved in Committee. I commend the bill to the House.
Question—That this bill be now read a second time—put.
The House divided.
Mr J. H. Turner
Mr R. W. Turner
Question resolved in the affirmative.
Bill read a second time.
Clauses 1 to 3 agreed to.
Mr BOB DEBUS (Blue Mountains—Attorney General, Minister for the Environment, and Minister for the Arts) [1.24 p.m.], by leave: I move Government amendments Nos 1 to 5 in globo:
No. 1 Page 5, schedule 1 , proposed section 26G (1). Insert after line 34:
(a) subject to subsection (2), be in writing and sworn, and
No. 2 Page 6, schedule 1 , proposed section 26G (1). Insert after line 17:
The application must also fully disclose all relevant matters of which the applicant is aware, both favourable and adverse to the making of the order.
No. 3 Page 10, schedule 1 , proposed section 26N (3), line 35. Insert "be in writing and sworn, and" after "must".
No. 4 Page 29, schedule 1 , proposed section 26ZM, line 35. Omit "the material must be destroyed". Insert instead "the Commissioner of Police is to ensure that the material is destroyed".
No. 5 Page 30, schedule 1 , proposed section 26ZN, lines 10-20. Omit all words on those lines. Insert instead:
(a) the number of applications for preventative detention orders (including interim orders) and the number of any such orders made, and the number of occasions on which such an order (other than an interim order) was not made following a hearing,
(b) the number of any such applications and orders in relation to adults and the number in relation to juveniles,
(c) the duration of each such order made,
(d) a statement as to whether each such order was made to prevent a terrorist act or to preserve evidence,
(e) a statement as to whether a person was taken into custody under each such order and, if so, the period for which the person was detained,
(f) a statement as to whether the person detained under such an order was principally detained in a correctional centre, juvenile correctional centre, juvenile detention centre, police facility or other place,
(g) the number of applications for prohibited contact orders and the number of any such orders made, the duration of each such order and the number of any such orders made in relation to adults and in relation to juveniles,
(h) the number of applications for revocation of an order and the number of revocations granted,
(i) particulars of any complaints in relation to the detention of a person under a preventative detention order made or referred during the year to the Ombudsman or Police Integrity Commission and the outcome of any complaint so made,
(j) a statement confirming the destruction of identification material required to be destroyed under section 26ZM (4).
Amendments Nos 1 and 3 require that the application be in a written form and sworn by the officer making the application to the court. These amendments were suggested by the New South Wales Bar Association. The requirement is consistent with the obligations of an officer applying for other warrants within New South Wales. Amendment No. 2 concerns a requirement to include in an application any information about any potentially adverse impacts of the making of an order. This amendment was suggested by the Public Interest Advocacy Centre. The amendment puts a positive obligation on the police to inform the court of any serious consequences to the individual of the order being made. If, for example, the person about whom the application is being made is a single parent and there will be a particular and serious impact on the children of that person, the application should detail that impact for it to be taken into account together with the information that supports the making of the order.
Amendment No. 4 is an amendment to proposed section 26ZM to provide that the Commissioner of Police is to ensure that identification material is destroyed in compliance with the provisions of the section, with a further requirement in proposed section 26ZN that a statement of compliance be reported to Parliament. This is another recommendation of the Public Interest Advocacy Centre and it is consistent with the provisions of the Terrorism (Police Powers) Act in relation to covert search warrants. I turn finally to amendment No. 5. One of the important safeguards under the bill is a requirement in proposed section 26ZN for the tabling of annual reports about the operation of the Act by the Attorney General. The information that the report is required to include has been significantly expanded. The Public Interest Advocacy Centre made a number of recommendations in relation to the information that should be included, and a number of those suggestions have been taken up in this amendment. They are listed in the document that I have circulated. Nevertheless, I think it will be agreed by the Committee that these refinements are entirely within the spirit of the bill.
Mr ANDREW TINK (Epping) [1.27 p.m.]: I understand that the Senate committee recommended something similar to amendment No. 5. It seems to be commonsense. Amendment No. 4 appears to provide clarification and casts an obligation on the Commissioner of Police. I have no problem with that. I do not oppose amendments Nos 1, 2 and 3 but I am concerned that they could potentially place an extra burden on the police, particularly amendment No. 2, as it would appear to set up a legal test which of itself would be arguable in a court. The words proposed are "all relevant matters of which the applicant is aware, both favourable and adverse to the making of the order". That may set up quite a significant extra hurdle for police to overcome. Those words propose a test which would become arguable in court and which may itself become an issue in the legality of the proceedings.
With the words "applicant is aware" come all the tests, rules and procedures across the board that police use to determine these matters. It is not a big leap to go from "is aware" to "should be aware", which may provide a major hurdle in the courts to effective police operations. Many actions undertaken by police in good faith—attempting to make themselves aware of things as they see it at the time, doing their best in what might be very difficult circumstances—turn out not to be so. The whole matter can end up with the police tied up in court arguing about what they should or should not have been aware of.
One can see a whole body of law developing around that point and it becoming quite onerous. There is precedent for this type of concern in the police powers of detention after arrest legislation, which has been in operation for some time. Some of the words that were included in the legislation, no doubt in a well-intentioned way, have led to a lot of delay and extra work for police. My concern is that this may go down the same path. No doubt it is well intentioned and I am not going to oppose it. I merely issue that warning and hope that it turns out not to be the case.
Mr ROBERT OAKESHOTT (Port Macquarie) [1.30 p.m.]: I take it on good faith that these amendments are designed to improve the substance of the legislation and therefore will not oppose them. The fact that the Government has introduced a raft of amendments to its own legislation highlights the point made by several honourable members that this legislation is being rushed through. It is of grave concern that in respect of legislation of such importance and substance we are witnessing an example of the problems associated with rushed legislation even before that legislation has passed through the lower House. The fact that the Government has introduced amendments to its own legislation is clear demonstration that the process has been rushed. That was the Federal Opposition's direct criticism of the Howard regime's introduction of the anti-terrorism bill. That same argument stands today in respect of this bill.
Mr BOB DEBUS (Blue Mountains—Attorney General, Minister for the Environment, and Minister for the Arts) [1.31 p.m.]: I appreciate the contributions made by honourable members opposite. In response to the remarks of the honourable member for Epping, I merely state that he is indeed correct to assume that the amendments are made with goodwill and in an attempt to ensure that the legislation should operate as humanely as possible. I reiterate that the words used in amendment No. 2 refer to "relevant matters of which the applicant is aware". It is not a question of what the applicant should have been aware of, just a question of what the applicant is aware of. We are talking here of an inter pares application, one in which the person the subject of the application is unaware at the time. It does seem to me that these other matters—as I have described them, and of which the applicant, normally the police, is aware—are a reasonable further requirement.
As to the observations of the honourable member for Port Macquarie, I merely point out that the large numbers of bills that go through this House and are efficiently and confidently dealt with involve several concurrent processes of consultation, and it is in no way unusual that there should be some refinements of this nature introduced at this stage of proceedings. It can be argued, indeed, that so competent has been the preparation of this legislation that, after days of consideration by the most interested and well qualified lawyers in the State, this is all they could come up with. What they have come up with is quite sensible.
Mr Robert Oakeshott: Is that your argument?
Mr BOB DEBUS: It is my argument. Good heavens, it is my argument! This bill has been prepared over a longer period and with more care than is the case with a great many bills that go through this Parliament. Bearing in mind the rather substantial qualifications that I have given voice to inside and outside this House about the fact that we are obliged to bring in legislation of this nature at all, I must say that I commend those who have been engaged in its preparation quite particularly. Indeed, it is possibly the opportunity for me to say that I believe that the Criminal Law Review Division of my department, led by Mr Lloyd Babb, has performed quite outstanding service in bringing this bill to the stage at which we now find it, given the kind of legislation that might have eventuated if it had not been so carefully and competently, and indeed passionately, pursued in the time since the Council of Australian Governments meeting a few weeks ago. With those observations I commend the amendments and the bill.
Amendments agreed to.
Schedule 1 as amended agreed to.
Bill reported from Committee with amendments and passed through remaining stages.