Additional comments and points of dissent by the Australian Democrats
Senator Brian Greig o n behalf of the Australian
Democrats
The Australian
Democrats share the many concerns raised by the Committee in relation to this
Bill. In particular, we are concerned
that the Bill has the potential to:
- undermine procedural fairness in the
context of civil proceedings and limit the right to a fair and public
hearing;
- compromise the right to access effective
remedies in relation to violations of human rights;
- breach Australia's international human
rights obligations;
- decrease, rather than increase,
Australia's national security;
- generate delays in civil proceedings;
- increase the cost of civil proceedings;
- blur the separation of powers between
the Executive government and the Judiciary; and
- reduce public confidence in the rule of
law.
The Australian
Democrats acknowledge that the government has had to grapple with some
difficult issues in drafting this Bill, however we do not agree with the
Attorney-General's assertion in his Second Reading Speech that, "the government has yet again struck the right balance
between protecting national security and protecting the rights of
parties".
We are conscious of
the many and varied civil proceedings which could potentially be covered by
this Bill – including urgent applications to challenge the validity of
detention by the Australian Security
Intelligence Organisation, family law proceedings involving intelligence
officers, defamation proceedings in cases where the Government has defamed an
individual, and proceedings for the review of an administrative decision, just
to name a few.
In many cases, the
Executive government will be the defendant or the respondent in the
proceedings, yet it will also have the power to determine whether the national
security information regime applies or not.
This is concerning, given the significant consequences of a decision to
issue a notice under clause 6A.
The Democrats
believe that the proposed regime represents an inappropriate interference by
the Executive government in the processes of Australian courts.
Even if the
interference is not inappropriate, there is a risk that it will be perceived to
be so, thereby undermining public confidence in the rule of law.
The Government's
stated intention in introducing this Bill is to protect Australia's national
security. While much has been said about
the broad definition of 'national security' in the Bill (and the Democrats
share the concerns that have been expressed about the breadth of that
definition), it is also relevant to consider what the Australian community sees
national security as embodying. This is
because the community's concept of national security will determine its
perceptions about the appropriateness of the Bill.
The Democrats
suggest that, in the minds of many Australians, national security means the
protection of the physical safety and fundamental rights of all
Australians. Given that national
security involves protecting, not just physical safety, but also freedom and
liberty, we should ask ourselves whether national security initiatives which
infringe the rights of Australians are actually compromising, rather than
strengthening, Australia's national security.
In the context of
this Bill, the Democrats are concerned that the Bill has such a profound impact
on the rule of law and the rights of Australians that it may actually be
detrimental to Australia's national security.
Having carefully
considered the provisions of this Bill, the Democrats have concluded that the
Bill is deeply flawed. At best it is unworkable, but it's also potentially
dangerous. Consequently, we do not believe that it should be passed – even if
it is amended in accordance with the Committee's recommendations.
However, if the Bill
is to be passed by the Parliament, it will be critical for the Committee's
recommendations to be implemented. In
addition, the Democrats believe that a sunset clause is crucial. Given the significant implications of this
Bill for the independence of the courts, the rule of law and the rights of
Australians, it is important for the Bill to be fully debated by the Parliament
if it is to continue beyond three years.
It will also be
important to monitor the operation of the legislation carefully during that
period of time and, in this respect, the Democrats welcome the Committee's
recommendation for a formal review after a period of 18 months. It will be particularly important for such a
review to test the Government's proposition that it has struck an appropriate
balance between protecting national security and protecting the rights of
parties. The evidence may well prove
otherwise, in which case the Parliament may conclude that there is no
justification for the legislation to be re-enacted.
Recommendation 1:
That the Bill be opposed.
Recommendation 2:
That, if the Bill is not to be opposed, it be
amended in accordance with the Committee Recommendations.
Recommendation 3:
That, if the Bill is not to be opposed, it be
amended to include a sunset clause which provides that the legislation will
cease to have effect three years after it commences.
___________________
Senator Brian Greig
Australian Democrats
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