Australian Greens Additional Comments
National Security Legislation Monitor
1.1
The Australian Greens support the establishment of an office to review
the operation of the many pieces of interlocking legislation dealing with
offences relating to terrorism.
1.2
This function is essential to address the 30 new laws and more than 80
amendments to the Criminal Code and the Crimes Act introduced in the name of
the 'war on terror', which dramatically increased state powers of surveillance
and detention in the absence of the countervailing protection of a bill of
rights.
1.3
This office has the potential to play an essential accountability role
in making clear to the Government and the broader public whether these laws are
necessary, proportionate and effective at meeting their stated objective. It is
therefore an alarming sign of the Government's priorities that the office will
be headed by a part time position with only two staff, with scant reporting
obligations, and the ability for the executive to sanitise those reports which
do become public. This is against the backdrop of $8 billion forecast spending
on billion national security out to 2012 for rapidly expanding agencies
operating without many of the accountability checks which apply to other
Commonwealth agencies. It is hoped that at a bare minimum this Committee's
recommendations will be heeded and that in the course of the Senate debates we
can set a more appropriate mandate for this office.
1.4
The National Security Legislation Monitor Bill and the inquiry into it
has benefited from several previous Private Members and Senator's Bills and
inquiries regarding the establishment of a mechanism to review Australia's
anti-terrorism laws. The UK included such a review mechanism when
anti-terrorism laws were passed there. Australia did not follow this model,
although such an office has been recommended by:
-
the Security Legislation Review Committee chaired by the Hon
Sheller AO QC, June 2006;
-
Parliamentary Joint Committee on Intelligence and Security in Dec
2006 and again in 2007;
-
Senate Legal and Constitutional Committee in October 2008;
-
The Senate through passage of a Private Senator's Bill in
November 2008;
-
The government's response to various reviews issued on 23
December 2008.
1.5
The enactment of some of the terror laws resulted in significant
departures from established principles of Australian law and should be repealed
rather than reviewed. This review mechanism should be run in parallel
with efforts to repeal the more egregious components of the terror laws as
outlined in the Anti-Terrorism Laws Reform Bill (2009). There
are some laws which are so extreme, so repugnant, redundant or otherwise
inappropriate that should be abolished and do not deserve the dignity of being
subject to review. These laws include those that allowed the Haneef scandal to
unfold, and include excessive 'dead time', undue surveillance and invasion of
privacy. The laws relating to sedition and the 'reckless possession of a thing'
are also amongst the laws that should be abolished.
1. Resources
1.6
The Committee's fourth recommendation draws attention to the fact that
the government propose one part time Reviewer with two support staff. Given
that the reviewer is to conduct analysis of the array of complex terror laws,
review them every time they are used, or when the PM requests, or when the
Reviewer so chooses, this is clearly a very modest staffing arrangement. As
the demands on the Monitor increase so too should resources. The Monitor will
require resources to facilitate advice from high-level and often very expensive
legal minds, and means to travel to hold hearings and attend gatherings to
report on the activities of the office.
2. Independence
1.7
The independence of this office is vital if this exercise is to increase
public confidence in balanced terror laws, which is why the Greens have argued
that it should contain the word 'independent' in the title. The Greens would
prefer the term Independent Reviewer of Terrorism Laws, not only because the
word 'monitor' evokes high school scenarios, but also because the laws should
be reviewed and changed, not minded.
1.8
The Greens believe that the Explanatory Memorandum for this Bill should
clarify that the Monitor is empowered to vet and appoint staff. Evidence
provided by the Department of Prime Minister and Cabinet that they already had
specific staff “in our minds” for the Monitor's office, does not bode well for
the independence of the Monitor, thus clarification is needed in the
Explanatory Memorandum.
3. Human Rights
1.9
In many respects this exercise is about human rights, an attempt to
answer the enduring question about whether the anti-terrorism laws strike a
balance between security and the protection of civil and political
rights. The Australian Greens have consistently sought to link the
efforts of this review mechanism to Australia's human rights obligations under
the Treaties and Covenants we have signed, and also believe that the Human
Rights Commissioner should be able to make references to the Monitor in addition
to the Parliamentary Joint Committee on Intelligence and Security.
4. Scope
1.10
The scope of what the Reviewer can examine needs to be clarified by the
government. It is essential that the Reviewer is not unduly limited to having
regard to related and consequential impacts on legislation that may not at
first appear to be strictly related to national security legislation, but which
are considered relevant and utilised in connection with terrorism
offences. In addition, we propose that the Monitor / Reviewer be given a
specific mandate to examine whether the terror laws have been used in other
contexts, whether they be industrial, environmental or organised crime
contexts, to identify whether 'scope creep' is occurring.
5. Penalties
1.11
It is appropriate that the Monitor has been conferred powers to compel
people to a hearing and to produce documents and information. However, all of
the penalties for failure to comply do not apply if the person has a
"reasonable excuse" which includes not having to "answer a question,
produce a document or thing or provide information on the grounds that to do so
might tend to incriminate the person or expose the person to a penalty."
This represents a gaping hole in possible sources of evidence the Reviewer
might draw from.
6. Limitations on the Reviewer
1.12
The Reviewer is not to review the priorities or use of resources by
agencies. This poses a difficulty when the means to implement the laws and the
safeguards within institutions are very much pertinent to the
evaluation/assessment task assigned to the Reviewer. The Reviewer is also not
to consider any individual complaints. This becomes blurred when each
individual use of the laws triggers a review. High profile terrorism cases
will invariably link the Monitor's work to the cases of individuals.
7. Annual Report
1.13
It should be noted that there is a lengthy list of things that may not
be referred to in the annual report (in Section 29 (3) a, b, c, d, and e), each
beginning with any information that might prejudice national security,
the function of any agency, that would endanger a person's safety, from a
document or deliberations of Cabinet of a Committee of the Cabinet or
Commonwealth or State, about which the Monitor has to get advice from
Minister/s. Several of these provisions can be interpreted very broadly,
making for possibly extremely brief annual reports. It is essential that the
annual reports are not vetted in advance by Ministers including the Prime
Minister; such editing as is necessary to remove operationally
sensitive information should be undertaken by the Monitor – not the
Government - prior to the reports being tabled in Parliament.
8. Prime Minister's Referrals
1.14
In addition to making references, the Prime Minister can currently
determine the order in which the Reviewer attends to the workload, which could
overburden and divert the efforts of the office. For this reason, the number of
references by the Prime Minister and their subject should be made public.
9. Reporting
1.15
As the bill stands currently, the only reporting obligations of the
Monitor to Parliament may be heavily edited annual report. We believe it is
essential that the Monitor be required to table a report (subject to the same
conditions described in 8, above) with the Government required to provide a
response within a period of 6 months.
1.16
The laws that were
hastily created in Australia following the crimes of 11 September must be
reviewed to determine which merit retention and modernisation. Mistakes were
inevitable when the government of the day did not allow the parliament to
debate each bill individually even though the anti-terrorism legislative
package constituted some of the most dramatic changes ever made to Australia's
security and legal environment.
1.17
Two hundred pages of legislation and explanatory memoranda were
introduced into the House of Representatives at 8pm and were expected to be
debated at 12 noon the next day, leaving entirely inadequate time for review
and analysis. Amendments were made available to the Senate less than 24 hours
before the commencement of debate in that Chamber, effectively stripping the
parliament of the time necessary to ensure that the laws were adequate to
prevent, deter and pursue terrorists while ensuring that any limits on free
speech or association struck an acceptable balance. The parliament was set up
to fail, and fail it did. While the establishment of the Reviewer's office is
overdue, proper time should be taken to consider amendments so that this office
can enjoy cross-party support.
1.18
The Australian Greens are deeply committed to the principle of
nonviolence. Nonviolence is one of the four interconnecting pillars that are
the foundation of our party's policy and practice. We condemn the violent
crime of terrorism, and view nonviolence as a creative, planned, positive force
to resolve conflict, believing it to be the best way to transform oppressive
power, symbols and behaviour. While some leaders and commentators deeply
fear the accusation of being "soft on terrorism" believing it to be corrosive
of their public perception, standing and masculinity, the Greens believe that
to maintain the anti-terrorism laws in their current form is corrosive of
democracy itself and the rule of law upon which it is based. The benefit of
hindsight and the passage of time have revealed many of the laws as irrational,
unworkable or extreme. It is high time they were reviewed.
Senator
Scott Ludlam
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