In 2002, the official ALP view expressed to us was:

the Opposition is determined to defend Australia's
democratic values. It is the Opposition's firm view that the proposed
Terrorism Bills in their present form offend those values, while doing
little to actually target terrorists and their organisations.

Nothing seems to have changed since.  Here is a long but powerful speech given by Carmel Lawrence in the Federal House of Assembly on November 28th 2005 which covers the issues this silly and dangerous legislation raises.

Dr LAWRENCE (Fremantle) (7.46 pm) 

I guess in some ways the quote that should head up the Anti- Terrorism Bill (No. 2) 2005 is the one that is incorporated in the explanatory memorandum: "I am safe but unable to be contacted for the time being."  That is a pretty chilling suggestion of the way in which people should say that they have been detained.

I want to make a number of criticisms of the proposed anti-terrorism laws. Firstly, they fail to conform with the key values of a liberal democracy. This is the most fundamental criticism. Secondly, they deliberately breach the Constitution by pushing some of these conditions onto the states. Furthermore, they offer no or poor justification that the proposals are actually needed or will be an effective means of preventing ideologically or politically motivated violence. Being tough is not good enough; they should be effective.

The proposed laws remove fundamental rights and in so doing they play to the terrorists script. Indeed they are removing rights that it is claimed we are defending from terrorist attack.

The bill also lacks clarity and precision, especially in the sedition provisions. There has been inadequate public discussion. If it had not been for Jon Stanhope, the discussion would have been even more severely limited. While some pretty crude opinion polling suggests that many Australians are responsive to calls for these proposed anti-terrorism laws, it is fair to say that they have not heard the arguments. There has been a conspicuous lack of information about the nature and extent of the terrorist threat, and they cannot sensibly judge whether these laws are justified. Indeed it is difficult enough for members of parliament, despite the Senate Legal and Constitutional Committee inquiry report coming down today.

I will also indicate the key provisions of the legislation which are of concern to me, and I know to a great many others, and the dangers associated if the bill is implemented in its current form.

The fundamental test is, of course, whether these laws are necessary, particularly given the threat they pose to the civil and political rights of Australian citizens. The key values of a liberal democracy are challenged in this, so we have to hear an argument for why they should be set aside. For example, we need a full explanation of why existing laws are not adequate, what the new powers are for and why they are needed.

We have not had that argument either from the Attorney-General in his eight-minute second reading speech or from anyone else. Are they proportionate to the threat that we face? As argued by the lawyers from the Gilbert and Tobin Centre of Public Law, relative to measures adopted in the United States and Britain, these laws are more extensive and invasive, despite the lower risk of a terrorist attack in Australia.

There is no argument from anyone that I have heard that Australia faces an actual or imminent emergency   threatening the life of the nation  , as required under international law if we were to adopt these extreme measures. To suspend basic rights such as freedom from arbitrary detention there must be an actual or imminent emergency which threatens the whole population. We have signed up to these conventions and that is what we say we will do. There is no threat to the population, the existence of the state or the functioning of state institutions as required under international law, nor has Australia sought to notify the United Nations, as required under the relevant convention.

What is more, the alert level has been set at medium since 2001, meaning, as it says, a terrorist attack in Australia  could occur  . It has never been set at high or extreme.

The United Nations has been very clear that states must ensure that any measure taken to combat terrorism complies with all their obligations under international law and should adopt such measures in accordance with international law, particularly international human rights, refugee and humanitarian laws.

If we are to adopt laws of this kind we in this parliament need to make the case that the laws are necessary because no other laws are capable of dealing with those planning, assisting or inciting terrorist acts. I do not believe the government has done that either.

They are already criminal offences. If police have evidence that someone is planning or assisting a terrorist act, they should arrest them, charge them and detain them, until trial if necessary. It is not clear that the existing laws are insufficient to address the terrorist threat and we know, because this parliament passed the laws, that ASIO already has powers to question and detain people suspected of having information related to a terrorism offence. Parliament gave ASIO extensive powers to question and detain people for up to seven days. The Australian Federal Police may hold suspects for an extended period of 24 hours.

ASIO has also been given a massive increase in resources and expanded powers of surveillance and evidence gathering. New terrorist offences have been created in law, and wider powers to ban terrorist organisations and prevent terrorist financing have been conferred over recent years.

Despite the breadth of these powers, Australia has seldom made use of them. As far as I know, only 10 people were questioned in 2004-05 and none detained by ASIO. Before the recent arrests, there were very few arrests for terrorism or terrorism related offences. Indeed the arrests three weeks ago indicate that existing provisions do allow for those people who are planning terrorist acts to be charged under existing legislation, to be charged and detained while respecting the normal safeguards, including the presumption of innocence, although I must say that some sections of the press and some premiers have set that aside. Indeed the former ASIO chief, Mr Richardson, said clearly after the last round of amendments that the powers were sufficient. And so too AFP Commissioner, Mick Keelty, in response to Kerry O  Brien  s question on the 7.30 Report about the raids that I mentioned, when Kerry O  Brien asked: Does it demonstrate that current powers are adequate?  MICK KEELTY: Well, I think they are ...

If there are gaps, why not cover them by creating offences in the Criminal Code, if it is demonstrated that the code is inadequate? We are told that the London bombings and the evidence of home-grown terrorist acts were justifications for this legislation but I do not think they are compelling arguments. We knew we had home-grown terrorists; there is one in jail in Perth and the perpetrators were not known in London. Indeed, despite the legislation there, such laws did not help and would not have helped. The United Kingdom, as we know, was trying to introduce similar laws but they were being subjected to close scrutiny and tests against the Human Rights Act, something that we do not have in this country we do not have those protections. I think it is worth asking the question: what will these laws achieve that concerted surveillance could not?

It is possible that the focus on new laws may deflect attention from practical counter-terrorist measures and resources as well. The laws are no substitute for properly enforcing the existing law and they might hamper the efforts to address the structural causes of some terrorist violence by alienating big sections of the Islamic community. So we have a serious lack of justification on the question of how these measures deal more effectively with the threat of ideologically and politically motivated crime. As I suggested, they may in fact be counterproductive, being directed disproportionately at the Muslim community. They risk alienating the community whose cooperation is needed. They will expose more people to intrusive policing powers and that will mean increased insecurity for some sections of the community.

As a recent Age editorial concluded: The Government ... has not spelt out clear deficiencies in current laws nor demonstrated a compelling practical need for a secret and draconian counter-terrorism regime. The federal government and the state governments, for that matter, have failed to provide adequate justification of how these measures, with their severe curtailment of rights and freedoms, are proportionate to the threat. I think it is probable that many Australians will not care if the government succeeds in creating illusions of security and prosperity with these laws. Amanda Vanstone's comments in this respect are illustrative: it is not about actually making change, it is about making people feel better  do something, anything will do.

My second major set of objections is that the measures represent a very serious departure from the key principles of liberal democracy. They overturn fundamental values and hard-won rights, rights that have been fought for over centuries: the right to liberty, freedom of speech and freedom of association. There are various measures in the bill that offend these values and others, including the separation of powers and due process, for instance. The control orders are effective house arrest. Preventive detention is detention without trial by any measure or without the legal testing of the evidence. Sedition, the invasion of privacy, the denial of access to preferred legal counsel and the overturning of the presumption of innocence.  These are big shifts in our legal system.

I think we need to say right at the outset that detention is the most invasive restriction on the individual liberty and security of the person. At base, these laws overturn the right to individual liberty. It is one of most cherished doctrines in common law and we are being asked to set it aside because it will no longer be necessary to prove the commission of an offence before detaining someone. In any system, such deprivation of liberty should be a last resort, after all feasible alternatives have been found wanting. That is not just required under international law; it is a long-standing provision of our common law heritage, dating back to the Magna Carta, and the rule of law in this country. As Lord Hope of Craighead said in a recent House of Lords decision overturning indefinite detention in the United Kingdom: It is impossible ever to overstate the importance of the right to liberty in a democracy. That means for everybody, not just for the select few.

The government has been urged by the Law Council of Australia, for that reason, to abandon the proposals to introduce preventative detention orders and control orders. They say, and I agree, that the rights of Australians to liberty, freedom of speech, movement and association should be inalienable, protected by parliaments not reduced by them. It is important, in this House too, to remind ourselves that a nation is judged: ... not by the way it treats the majority of its citizens but by what it does to its minorities, its criminals, its troublemakers and its misfits. It is a basic right, and one I cherish, that only a court may detain someone and then only persons charged with a crime. That is being overturned by this legislation. The police function is then limited to bringing people to court expeditiously. It is a long-standing principle underpinning our legal system. It is also included in the obligations under the International Covenant on Civil and Political Rights to which we are a signatory. The prohibition on arbitrary or unlawful arrest or detention is article 9 of that covenant and, for these reasons, the Law Council and others recommend that the government abandon preventative detention and control orders.

I am very worried that this legislation confers unprecedented powers on police and security organisations. The breadth of the proposals to date is extraordinary and so is the potential for innocents to get caught up in the net. It requires us to trust police security agents who have in the past shown they are capable of corruption, political partisanship and just plain incompetence. Why should we trust them to act without scrutiny? We have never done it before.

The other thing about these laws is that they are based on intelligence, not evidence, with all the weaknesses that entails. There is no reason to expect that serious mistakes will not be made; indeed, the chances of errors and abuse are greater than normal because the police will be acting on vague information that would not justify a charge and that will not be tested in the normal way. As we know, momentous consequences can flow from errors of intelligence and unfettered administrative licence. We only need to look at the war in Iraq, the experiences of Cornelia Rau and Vivian Solon and many other examples. A public servant contacted me recently and said,   “As a public servant who has worked in both Defence and Immigration, I am only too conscious of the way that lack of transparency and strong statutory powers can result in abuses of power and the undermining of human rights, irrespective of the original sound intentions of everyone involved.”  

These laws too, as I mentioned earlier, overturn the presumption of innocence, which is a very fundamental shift. Normally, individuals are presumed innocent until proven guilty in a court of law upon adequate proof which is properly tested. Under current law, individuals are presumed innocent and are generally free from coercive powers, except arrest powers in relation to persons suspected on reasonable grounds of committing a crime, who must be brought before a judicial officer after a short period of detention. That is the way things are today. As President of the Human Rights and Equal Opportunity Commission, John von Doussa, said,   The key characteristics of a police state are that the police exercise powers on behalf of the executive and these powers are not subject to independent judicial review, including a review of the factual basis on which the powers are exercised.   These proposed laws substantially alter the relationship in this respect between citizens and the state. They inevitably mean a more controlled and compliant population and they marginalise political dissent.

I have also mentioned that these laws represent a deliberate attempt to bypass the Constitution. The states are being used to circumvent the constitutional limitations on detention without trial of 48 hours. Instead, people will be held for up to two weeks. The proposed use of judicial oversight,  and there is some,  may still contravene constitutional separation of powers and compromise the independent role of the judiciary. That was certainly the opinion of many lawyers who appeared before the Senate committee. In doing so, the judiciary will be brought into disrepute, even using retired judges selected by the minister, a political tick off.  There is advice that the involvement of the Federal Court, the Family Court and the Federal Magistrates Service as issuing courts may indeed be constitutionally invalid. As has been said: the involuntary detention of a citizen in custody by the State is permissible only as a consequential step in the adjudication of criminal guilt of that citizen for past acts. It is not about something that it is feared they might do on the basis of intelligence rather than on evidence.

Of course the secrecy provisions of these laws are anathema. The secrecy that surrounds the process, in my view, is the antithesis of justice as we know it in our community, an essential aspect being that it is public and accountable. These laws effectively protect officials from scrutiny. There is no real transparency. There is the possibility of mistaken identity and faulty intelligence, which will not be easily corrected. People can effectively disappear and it can happen to anyone. Police will be able to detain without charge on their own initiative and that is truly revolutionary in the worst possible sense. As we have heard from other speakers, the sedition sections pose a particular risk for artists and activists critical of government or of those reporting their statements. I am sure it is for that reason that senators recommended abandoning this section.

Why not use the ordinary provisions of the Criminal Code if there is incitement to commit an offence?  Despite assurances at the COAG meeting, the bill makes no reference to the principle that restrictions on rights should be read in accordance with Australia  s obligations under the International Covenant on Civil and Political Rights  the premiers were actually dudded on this point  let alone the UN Convention on the Rights of the Child and other human rights treaties about which they were also given assurances.

I guess all of these things highlight the fact that we have no effective human rights framework in this country, certainly nothing that allows us to judge the new antiterrorism legislation. I think it is also worth saying that we are now almost alone in the developed world and western democracies in having no bill of rights. There is no check upon extreme legislation such as this. We are not party to any binding international instruments such as the European Convention on Human Rights and its five protocols, which enable European citizens to appeal to the European Court of Human Rights if domestic legislation or law is thought to be in breach of that convention. The comparison of our legislation with the British legislation, which the government and some speakers have made, overlooks the fact that their system contains more human rights safeguards than ours. As David Neal, recently writing in the Australian, said: The English Prevention of Terrorism Act 2005 adopts just that model for control orders. The police apply for a control order at a preliminary hearing in the absence of the person in question. If a control order is made, there must be a full hearing within seven days. That is somewhat similar to our own circumstances. The article goes on: Before the full hearing, the police must place all relevant evidence before the court.  That is a grave difference from our system.  Subject to security  they must provide the controlled person with a copy of that evidence. Again, even the Senate has not gone that far in its recommendations. The article further states: The controlled person must also provide his or her evidence and then the full hearing takes place. In other words, it is tested as evidence. The article continues: If the court confirms the order, there is a right of appeal on the basis of legal error. As David Neal points out,   The Anti-Terrorism Bill 2005 contains nothing of the sort.   

So we simply cannot make comparisons with the UK legislation because it is not similar. He asks:   Why is a full hearing possible in the United Kingdom  with all the threats it faces  but not in Australia?   Because this is quick and dirty legislation and it is not really designed to improve our safety.

The other thing that I want to refer to in the brief time I have remaining is the lack of checks and balances and parliamentary oversight. The so-called protections are very weak. A 10-year sunset clause is far too long. The judicial review is welcome but incomplete. The judge or magistrate has no comprehensive way of testing what is claimed by authorities. Indeed, it creates a false impression of due process and it is open to abuse for political purposes. It is of concern to me that a politician  the Attorney-General  will have a role in deciding whether certain orders or prosecutions proceed. This minister has form! That is why, in the criminal system, the Office of the DPP was created: to rule out political influence or interference and to ensure the separation of powers.

I think these laws require substantial amendment. It is easy to accuse the critics of exaggerating, but it overlooks history and human nature. This is the government that brought us children overboard, the Solon and Rau scandals and many others like them. As the editorial in the Canberra Times put it,   Few will have confidence in the good sense or love of liberty, for instance, of the Attorney-General on his record.   There is no doubt that the government has been obscenely keen to make political capital out of the terrorist threat, and we might ask how the media managed to be present at so many of the raids. It is very disturbing, as is this legislation. (Time expired)