ADDITIONAL COMMENTS BY THE AUSTRALIAN GREENS
'Terrorist crime, serious as it is,
does not threaten our institutions of government or the existence as a civil
community. The real threat to the life of the nation, in the sense of a people
living in accordance with its traditional laws and political values, comes not
from terrorism, but from laws such as these. That is the true measure of what
terrorism may achieve. It is for parliament to decide whether to give the
terrorists such a victory.'[1]
1.1
The Australian Greens submitted the Anti-Terrorism Laws Reform Bill to
the scrutiny of the Senate and its Legal and Constitutional Committee as a
means of reforming the most egregious of the hastily enacted laws that
seriously curtail human rights and fair trials in the years after the attacks
on September 11, 2001. These laws urgently need to be reviewed to determine
which merit retention and modernisation, and which should be struck from our
statutes as embarrassing and offensive mistakes.
1.2
We acknowledge the impending debate on the establishment of the National
Security Legislation Monitor who will undertake this reviewing role. The
proposals in the Anti-Terrorism Laws Reform Bill are those which we believe
lack the merits of even being deserving of review by this busy office.
1.3
The Greens join others on the Committee in hoping that the expertise and
debate generated by this inquiry will feed into the government's discussion
paper process on the anti-terrorism laws.
1.4
The government should note the high degree of agreement among the
submitting parties in supporting the direction of this Bill, and that legal
experts and organisations making submissions to the Attorney's discussion paper
process have also commended the approaches taken in this Bill.
1.5
A close comparative reading of the Anti-Terrorism Laws Reform Bill and
the Government's discussion paper and Exposure Draft reveals less common ground
than has been suggested. The key points of divergence are outlined below.
- The government’s paper extensively broadens rather than
narrows the definition of a terrorist act despite the advice of the Sheller
Committee: The Greens bill very carefully considers the statutory
definition of a 'terrorist act' and brings it into line with internationally
accepted definitions. Some of the terminology used within the Criminal Code in
relation to terrorism offences is inadequately defined and vague. Treating the
definition of terrorism in legislation as a broad-brush policy manifesto
enlivens far reaching and heavily punishable offences in Division 101-103 of
the Criminal Code.
- The government exposure draft leaves broad ranging sedition
offences in place, giving them the new name of 'urging violence'. Sedition,
or offences formerly known as sedition, are not necessary when incitement or
other public order offences already exist on our statutes. They remain
unacceptable in societies where the right of citizens to criticise their
government is viewed, indeed celebrated, as an essential component of
democratic life.
- The government exposure draft proposes an increase in the
intrusion of the Attorney into the judicial system under the National Security
Information Act. The Greens strenuously oppose this Act because it breaches
the doctrine of separation of powers and requires security clearance for
lawyers while providing no justification. Requiring security clearance for
lawyers threatens the right to a fair trial and limits the pool of lawyers
permitted to act in cases. It also threatens the independence of the legal
profession by allowing the executive arm of government to effectively ‘vet’ and
limit the class of lawyers who are able to act in matters which might involve
sensitive information.
By undermining the independence of the
legal profession, the right to an impartial and independent trial with legal
representation of one’s choosing is undermined. This Act permits for closed
court proceedings in certain circumstances for terrorism cases, and provisions
relating to the designation of evidence as ‘secret’. Accused persons can have
evidence led against them without the ability of their counsel to evaluate the
evidence. Even in the absence of such practices, the threat of their invocation
hangs over legal proceedings for as long as the NSI Act remains in force.
- The government exposure draft proposes a seven day 'dead time'
limit whereas this Bill proposes 24 hours as reasonable time to overcome
delays associated with communicating with different time zones to verify
information. Other legal experts providing evidence to the inquiry contend
that 48 hours should be the maximum.
- As the Committee notes in its report, the Attorney's Exposure
Draft leaves ASIO's enhanced powers untouched. Australians continue to be
very concerned about the coercive, investigatory, police-like powers granted to
an intelligence agency that does not have the same accountability or publicity
as a properly constituted police force.
- The Attorney's exposure draft does not address the myriad of
problems revealed by the current process used to proscribe an organisation or
individual, which was universally condemned through this Inquiry, and the
suggestion of an Advisory Committee universally supported. In fact, the
government's Bill extends the duration of each listing, thus reducing the
frequency of review.
1.6
Since the implementation of the controversial counter terrorism laws
there have been several rigorous inquiries and detailed reports providing
specific recommendations for reform.
1.7
While the Australian Greens were disappointed that it deepens rather
than reverses aspects of the Howard-Ruddock terror laws, we commended the
Attorney General for providing an opportunity for public comment on the
448-page National Security Legislation Discussion Paper and encouraged
community engagement.
1.8
The Greens have also supported the speedy establishment of the promised
reviewer of terrorism laws – indeed, we supported the passage of such an
office, in stronger form, through the Senate in late 2008. This person is yet
to be appointed, and the proposal that it be a part time position supported by
two staff is absurd given the huge expectation on this office, and the daunting
backlog of poorly drafted, draconian legislation that this office will
confront.
1.9
Australia's parliament and community did not get an opportunity to hold
a thorough and considered debate over the terrorism laws when they were
introduced; nor did they consent to the substantial reallocation of resources
away from healthcare, environmental protection and education to carelessly
defined security imperatives and the entrenchment of a massive internal
surveillance effort.
1.10
Now is the time for this thorough and considered debate about methods
for reducing the risk of terrorist violence while strengthening our democracy
and upholding the values which these laws were supposed to defend. We commend
this bill as an important part of furthering this debate.
1.11
Finally, I wish to record my thanks to the Committee and its hard
working secretariat for the constructive way in which all members engaged in
this inquiry.
Senator
Scott Ludlam
Australian Greens
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