Second Reading

Mr GARRETT (Kingsford Smith) (8.49 p.m.)—When we consider legislation of the scope of the Anti-Terrorism Bill (No. 2) 2005, we ought as a parliament first remind ourselves of the inherent features of our democratic system, noting its great strengths and capacities. Any major changes to this system that are proposed by a government need to take into account whether in the first instance the proposed laws will weaken or strengthen our democratic practice. This means inquiring into whether the laws will damage the foundations of a system built, as ours is, on a number of complementary planks which include the separation of powers, the rule of law, parliamentary representation and the implied and explicit rights of the people in the democracy.

The corollary of this inquiry is that the parliament has a responsibility to ensure that it accedes to laws which protect the lives of its citizens. In the context of the time in which we live, the government clearly has an obligation to protect the lives of Australians against acts of terrorism, and that is universally accepted in this House. The question, though, is whether laws aimed at protecting lives are drafted in such a way as to lessen rights and, if this is so, whether the case has been made that such a lessening or weakening of the democratic system is justified in the circumstances. As the shadow Attorney-General said recently, terrorism is not an excuse to abandon the established norms of criminal law. Additionally, we need to ask: are laws of the magnitude of the Anti-Terrorism Bill (No. 2) 2005 being proposed in good faith?

To answer those questions we need to consider both the circumstances of their introduction and their content, and we need to scrutinise the arguments advanced by those proposing the changes. As it turns out, the circumstances surrounding these proposals are those that have obtained for some period of time, and the threat level to Australia from terrorism has not formally increased. Up to the time of the announcement of the proposed laws, neither had there been a specific call by relevant agencies for more powers. The member for Grayndler referred to this very point in the House recently. Indeed, to the question, ‘Do you need more powers?’ put less than 12 months ago, I think, to the then Director-General of ASIO, Mr Dennis Richardson, the answer was no.

The bill already passed by this parliament—the Anti-Terrorism Bill 2005—and various provisions contained in federal and state legislation provide wide powers for police and intelligence services—and police were able to use these powers in the recent arrest of alleged terrorists in Sydney and Melbourne. In any event, it would be reasonable to assume that the call for any additional powers would be accompanied by, firstly, a detailed outline of why such powers were needed and, secondly, by the granting of sufficient opportunity for the parliament and the community to scrutinise the proposals before they came into the House for debate and for vote. In the legislation we are now debating, neither of these requirements has been met. In fact, the latter requirement was not offered. Indeed, the first requirement—some convincing justification for the laws as drafted—is still missing; and it is only due to the release by ACT Chief Minister Jon Stanhope of an early draft of the bill that the second requirement—community and parliamentary overview—has been partially met. This House and the people of Australia owe Mr Stanhope a great debt of gratitude for his role. He provided the necessary transparency—and, in fact, he provided some of the substance of the laws—so that the people to whom the laws would apply would have the opportunity to consider them.

This is not about legal intention—as has sometimes been discussed by legal authorities making submissions to the Senate committee and in other places—but political intention. The very basis of the laws as initially proposed—as the Chief Minister’s press release on the guarantees given by the Prime Minister stated—was, amongst other things, that they be based on clear evidence that they were needed, that the desired effect could not be achieved in a less onerous way, that they be effective against terrorism, that they comply with Australia’s obligations under international law, that they involve rigorous safeguards, that they conform to the principle of proportionality, that they contain sunset clauses and that they be subject to judicial review.

Yet the initial draft legislation was something altogether different; it was a different beast from the legislation agreed to by the Chief Minister, the premiers and the Prime Minister. Firstly, there was a substantial reduction of the existing and longstanding legal rights which are a hallmark of our democratic system. These rights were embedded in the legal principle of habeas corpus as it flowed through the history and legal development of the Judeo-Christian era and certainly into our own common law. I refer, of course, to the presumption of innocence, the right to know the charges that have been brought against you and have them heard as soon as possible in a duly constituted court, the right to privilege contact with a lawyer and the presumption that the onus of proof stands with those making the charges. These are rights that underpin Australia’s legal and political system—one underpins the other. Secondly, the laws in their initial draft form did not conform to the principle of proportionality nor to the International Covenant on Civil and Political Rights, to which Australia is a signatory—and, even in their proposed amended state, I do not believe they conform to the latter view. Thirdly, the judicial review turned out to be a review by retired judges. Fourthly, a greatly expanded and notorious offence which had fallen into disuse—namely, sedition—was reinvigorated and included. Finally, there was to be a brutal curtailment of the opportunity for examination and understanding of the laws by all of us.

It is impossible to escape the conclusion that this bill is as much about politics as it is about policy. As one commentator remarked recently, in the absence of compelling reasons from the Prime Minister, the challenge by former High Court Chief Justice Sir Gerard Brennan that ‘laws impairing rights and freedoms cannot be justified unless they are shown to be needed to target an identifiable, present danger to the community’ remains unmet. The charge that this is about atmospherics and not serious policy-making on the part of the government is impossible for the Prime Minister and Attorney-General to avoid.
Let us turn to context for a moment—and who can forget the following morsels from this period? There was the Prime Minister’s threat to exclude the ACT Chief Minister from the COAG deliberations—as it happens, for a period of time this threat was carried out. We had the floating of shoot-to-kill provisions, an intention to limit the Senate committee process to 24 hours—preposterous, scandalous and cheap suggestions made by this government on legislation which goes to the very heart of the kind of country we live in. These are just a few of a series of unwarranted and plainly antidemocratic actions and statements by this government and, regrettably, they are typical of the way the debate went in its early period. It was about managing the issue. This raises serious questions about the fitness of the government—and, in particular, the Attorney-General—for office.

I now turn to the sedition provisions—one of the features of the proposed laws that has caused great concern especially for the artistic community around Australia but also for publishers and the public as well. Until October 2005, sedition laws were dead-letter laws in Australia; they were unused, virtually unknown and without legal credibility of any kind. Sedition laws are on the statute books in countries such as Zimbabwe, Cuba, North Korea, and Singapore but they are on the way out in most democracies—except, it seems, Australia. With their vague and ultimately political nature, sedition laws have no place in our country. In the first place, the sedition laws, as drafted, extended far wider than the violent terrorist acts they were presumably meant to deal with. Numerous legal organisations and senior practitioners, including Peter Gray, senior counsel from the Sydney bar, who provided an opinion to me—(Time expired)