Dissenting Report by Greens Senators Bob Brown and Kerry Nettle
Key Points
The Greens Senators recommend this bill be
opposed.
The bill undermines fundamental
rights and freedoms intrinsic to democracy
1.1
The amendments recommended in the majority committee
report, while improving safeguards in the bill, do not address the fundamental
problem at the heart of the legislation which is detention without charge or
trial. Even with the amendments proposed by the committee the new powers and
offences contained in the bill would unnecessarily undermine fundamental rights
and freedoms intrinsic to democracy.
There is no adequate case for the
introduction of these laws
1.2
The government, ASIO and the Australian Federal Police
have not made a case for why these laws are necessary to protect Australia
from terrorism and have failed to demonstrate why the current laws and powers
are inadequate. In contrast the overwhelming evidence to the committee was that
these laws were not necessary, would breach international human rights law and,
in some cases, would undermine efforts to address the causes of terrorism.
The bill breaches Australia’s
commitment to the International Covenant on Civil and Political Rights
1.3
Numerous submissions to the committee outlined how the
legislation would violate Australia's
commitments to the International Covenant on Civil and Political Rights
(ICCPR). In response, assertions by the Attorney-General's Department that the
bill did not breach the ICCPR rested entirely on a general claim that confidential
legal advice to government that this was the case were not convincing.
The bill creates a parallel
criminal system of law without existing safeguards
1.4
Since 2002, 28 pieces of legislation have been
introduced to address terrorism creating a parallel criminal system of law in
which many of the ordinary protections, standards and processes have been
removed or modified. Central to this new system of law is a broad definition of
a terrorist act which could encompass many political activities throughout the
world. The Australian Greens remain concerned that these laws, along with the
existing terrorism laws, could be used to suppress and criminalise protest
movements and freedom struggles, including national liberation movements such
as the ANC or Fretilin in East Timor.
1.5
Some forms of civil disobedience and protest could also
be covered by the definition. The recent case of American peace activist, Scott
Parkin, highlights the potential dangers
inherent in these laws. Parkin was deported because ASIO claimed he was a
threat to national security, yet this decision was made in secret, without
conventional legal protections or processes. His case as have other recent
events, show the manner in which the Federal and State governments have used
the fear of terrorism as a political tool.
The Greens Senators recognise the
danger that terrorism poses to Australian society
1.6
However, our view is that such dangers can be addressed
within the framework of our existing criminal law. Undermining our fundamental
freedoms, as this bill does, is not only unnecessary but also threatens to
destroy the democracy that we wish to defend.
Specific Concerns
Schedule 1—Definition of terrorist
organisation etc.
1.7
The Greens Senators believe that the expanded criteria
used by the Attorney-General to list an organisation as terrorist is dangerous
and unnecessary. It threatens to criminalise speech which may be unpopular but is
legitimate in a democracy.
1.8
The broad definition of a terrorist act and the
universal jurisdiction applied in the legislation means that, for example, a
person praising a protest which becomes violent, such as some recent trade
summit protests, could result in the banning of their organisation. Those who
express support for self-determination movements in Iraq
or West Papua could fall within the definition.
1.9
Evidence to the committee highlighted the dangers in
criminalising and alienating further sections of the Arab and Muslim
communities that express support for Palestinian self-determination.[811]
1.10
Existing laws against incitement of violence are
adequate to prosecute anyone for encouraging genuine acts of terrorism.
Schedule 3—Financing terrorism
1.11
The Greens Senators share the concerns expressed by the
finance industry and other submissions that broadening the offence of financing
terrorism to encompass recklessness is not justified.
1.12
This provision creates potential uncertainly for people
donating to charities or those involved in the finance industry about their
legal position, if their financial involvement inadvertently or indirectly
results in funding to a 'banned organisation'.
Schedule 4—Control orders and
preventative detention orders
1.13
The Greens Senators believe that detention for reasons other
than the prosecution and penalty for a criminal offence cannot be justified except
for extraordinary reasons. The government is yet to make the case that such a
situation in Australia
exists at this time.
1.14
The experience of immigration detention in Australia
has highlighted the dangers of detaining people without a requirement to prove
before a court that the person may have committed a crime.
1.15
Evidence from the legal community, in particular the
Law Council of Australia, strongly asserted that preventative detention and
control orders should not be enacted.
1.16
The Law Council made the following important points
which emphasise there is no case for the new powers:
- The 17 arrests made in a joint task force of
federal and state police and ASIO, which have resulted in charges being laid
for terrorist related offences, demonstrate the effectiveness of existing law
to anticipate alleged terrorist acts;
- The current ASIO powers to detain and question
suspects up to 7 days have not been used to date;
- Dennis Richardson (Former Head of ASIO)
commented in May 2005 to the Parliamentary Committee reviewing ASIOs
questioning and detention powers that the laws which were enacted have worked
well;
- The 7 July 2005 London bombings occurred despite
the existence the preventative detention orders and control orders;
- Comments by Head of Police, for example, Commissioner
Moroney (NSW Police) that the lessons learned from Bali, Madrid and London are
that government effort should focus on ensuring that the law enforcement
agencies and intelligence authorities are properly resourced and organised to
deal with terrorist activity.[812]
Schedule 6—Power to obtain
information and documents
1.17
The Greens Senators recommend that the universal
concerns expressed by media organisations regarding these proposals should be heeded.
The broad sweeping violations of privacy that the provisions in this schedule
would allow can not be justified on the grounds of efficiency.
1.18
The safeguards and protections in the existing regime
for search warrants should remain.
Schedule 7—Sedition
1.19
The Greens Senators believe that a democracy should be
able to withstand rigorous and robust debate even if it involves a critique
that the majority disapproves.
1.20
Evidence to the committee was strongly against sedition
laws in our modern democracy.
1.21
We therefore support the recommendation of the
committee that Schedule 7 be removed from the bill in its entirety and we
further recommend that the existing sedition laws should be repealed.
Schedule 10—ASIO powers etc.
1.22
The Greens Senators believe that the existing
requirements for ASIO to obtain permission to use their extraordinary search
and surveillance powers are sufficient and should remain. We recommend that
ASIO should not be given additional powers to enable it to embark on fishing
expeditions. The misuse of intelligence to justify the invasion of Iraq,
the deportation of peace activist Scott
Parkin and bungled police raids relying on
ASIO advice reinforce the need for proper regulation of the intelligence
agencies.
Senator Bob Brown
Australian Greens
Senator Kerry Nettle
Australian
Greens
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