Marise Payne does it again

UPDATE 1.15PM by Margo: The Coalition will have a special joint partyroom meeting later this week to discuss the terror laws and IR. Despite this, Howard will force a House of Representatives vote on terror tonight at about 8pm. Labor will move an amendment removing sedition from the package as recommended by the Senate Committee, putting Liberal MPs who oppose sedition like Petro Georgiou and Malcolm Turnbull in an awful bind. More contempt for Parliamentary process by Howard. And for "his" MPs. Webdiary's terror laws archive is here.

G'day. NSW Senator Marise Payne has again managed to broker a united two party position on the Senate Legal and Constitutional Affairs committee she chairs. Her committee previously handed down the devastating report into the non-ASIO slab of the Government's 2002 terror package, which saw Liberal backbenchers stare down the government and broker balanced changes.

After that report Marise wrote a piece for Webdiary at Payne and gain. Today, her speech to the Senate yesterday presenting the Committee's report. It was scheduled to be tabled without comment, and Marise got all of 5 minute to prepare her 5 minute speech. Good stuff.

Today we'll find out if true Liberals are prepared to back their judgement and their core beliefs and take on Ruddock - who dismissed its recommendations almost instantly yesterday. Could be an interesting joint partyroom meeting.

To end, yesterday's press releases on the report from Committee members Natasha stott Despoja for the Dems and Kerry Nettle for The Greens. You can read Natasha's official comments on the package here and Kerry's and Bob Brown's official views here.

ANTI-TERRORISM BILL (NO. 2) 2005

Report of Legal and Constitutional Legislation Committee

Senator PAYNE (New South Wales) (4.33 p.m.)—I present the report of the Legal and Constitutional Legislation Committee on the provisions of the Anti-Terrorism Bill (No. 2) 2005, together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

Senator PAYNE—I seek leave to move a motion in relation to the report.

Leave granted.

Senator PAYNE—I move:

That the Senate take note of the report.

This legislation, the Anti-Terrorism Bill (No. 2) 2005, is the latest in a suite of legislation placed before the Australian parliament since approximately mid-2002. Its derivation and background are no secret to any of us. It is based in the changes that have taken place in the international security climate since the events of September 2001. Usually when bills such as this come before the Legal and Constitutional Legislation Committee a member of the committee—notoriously, on many occasions, Senator Mason—asks the authorities that appear before us when they seek more power, as is done comprehensively in this legislation, what powers they are prepared to give up that perhaps they no longer have use for. The committee rarely receives a comprehensive answer to that, but I think it is a very important message for the Senate to have in its mind in consideration of this report.

The Senate Legal and Constitutional Legislation Committee has over several years now considered very serious measures in legislation placed before it by the government and endeavoured on all occasions to examine those responsibly, seriously and comprehensively. It has been noted that in recent times the Senate committee has been presented with a swift timetable in which this action has been required. That is so, but we believe that in presenting this report today, of in excess of 250 pages, we have examined the issues and concerns raised during the committee’s inquiry in relation to the key provisions of the bill and that we have made constructive suggestions in response to many of those as well as taking into account, of course, the responses of the authorities, the law enforcement agencies and the Attorney-General’s Department. In a report which I would describe as a consensus report—that is to say that the elected members of the committee are agreed on the substance of the report, although some have made additional comments—the committee has made 52 recommendations which we believe go a long way towards enhancing the operation of the bill. The report sets out those key findings and recommendations and I would like to speak briefly to some of those.

In relation to preventative detention and control orders in schedule 4 of the legislation, the committee received a significant amount of evidence from a broad cross-section of the community, from legal practitioners, academics and government representatives in relation to the introduction and operation of those orders. There is no doubt that they are a very serious incursion into the way in which we currently expect to be able to live our lives in Australia. We are told that they are in response to very serious incursions into and threats against the way we expect to be able to live our lives in Australia. In that regard, the committee gave very careful consideration to the evidence and particularly to the very practical advice that was given to us by the Human Rights and Equal Opportunity Commission, the Commonwealth Ombudsman and the Inspector-General of Intelligence and Security.

A cursory reading of the report’s recommendations will indicate that many of the recommendations are aimed procedurally at enhancing the safeguards attached to preventative detention orders and control orders, and many are based on the advice received from those three very important authorities. They include the protection of minors when in detention, certain rights of detainees in relation to making representations on their own behalf and access to lawyers. We also advocate that the Ombudsman have a very active oversight role in this process. We believe that those recommendations are balanced, that they will strengthen what are very important procedural safeguards without undermining the capacity of the police, most importantly, to respond to identifiable terrorist threats.

I also want to speak in relation to law enforcement issues and the ASIO powers that are contained in various schedules of the bill and in chapter 6 of the report. The requests for expanded powers both from law enforcement agencies and from ASIO are considered very seriously by the committee. In our recommendations we have endeavoured to address concerns raised about the potential breadth of those powers. We have, for example, suggested the insertion of several statutory safeguards and what might be described as checks and balances on the use of the new powers that will enable an adequate protection of the civil liberties that we have come to expect in this nation without undermining, as I have said before, the powers of police and ASIO to do their job in this very difficult environment. We have suggested the tasking of the Commonwealth Ombudsman with comprehensive oversight of the use of those powers under schedule 5, the preservation of legal professional privilege and other duties of confidence and the limitation of the request for ASIO’s extended powers to investigations that specifically relate to suspected terrorist activities and terrorism offences only.

The committee received some evidence in relation to the financing of terrorism and the money-laundering aspects of the bill. To address those concerns, the committee has suggested that the bill commence on a date to be proclaimed as opposed to a fixed date. It is hoped that government and the relevant interests in this area are able to come to an agreeable solution on that matter.

I want to speak also about the matter of reporting to parliament on the review and sunset provisions. It will be evident from the report that the committee takes its role and the parliamentary role in this area very seriously. We suggest six-monthly reporting on the use of preventative detention and control orders. We suggest a five-year review of the legislation by a committee similar to that currently known as the Sheller committee and a five-year sunset period. All senators will know that the original bill proposed a 10-year sunset period. The committee, with the best of its diligent searching, has been unable to find an equivalent sunset period in other legislation. These powers are extraordinary in nature and we believe that they should be reviewed publicly, within a shorter time frame, before there is a decision on whether to extend them.

I want to finish on the question of schedule 7 of the bill and chapter 5 of the report, and that is the question of sedition and advocacy. Almost 300 submissions were received by the committee. The overwhelming majority of those submissions raised very serious concerns about the proposed updating of sedition offences. They came from a range of organisations and, I think it is fair to say, not just the ‘usual suspects’. During his second reading speech the Attorney-General announced a review of these provisions to be conducted next year. In light of that, in light of the very serious concerns raised with the committee, in light of the state of existing laws, which include the offence of treason, the crime of incitement and the laws contained also in this bill in relation to advocacy, the committee considers that the comprehensive review indicated should take place before the sedition provisions are enacted. As a whole, we considered it was inappropriate to enact legislation which is in advance considered to be in need of review.

We understand that this is a very serious recommendation. We suggest that the Australian Law Reform Commission is an ideal body to undertake that review to inquire into the most appropriate legislative measures to address the issue of sedition and incitement of terrorism. As you will recall, Mr Acting Deputy President Brandis, there was extensive discussion of the provisions of the bill and of the revival of the concept of the offence of sedition and where that would take us were we to have this enacted and then a review presented to us. In the event of that recommendation not being taken up, the committee has made a number of alternative suggestions, which concern sedition, to address measures provided for in the bill that were also of concern. The committee makes this recommendation very seriously and with awareness of its importance.

As I said earlier, the inquiry took place over a short period of time and the hearings were intensive, with in excess of 10 senators participating in virtually every moment of those hearings. It is an indication of the level of interest that so many submissions were received in such a short period of time. It is important that I, as chair, place on record my thanks to members of the committee and participating senators who assisted in this process and to indicate that the general consensus nature of the report indicates the very important process Senate review can provide. The consensus nature of the report indicates that we can move forward on these extremely contentious areas of legislation and these invasions, some would say, of civil liberties which match the invasions of our own way of life in the current security environment.

Anti-terrorism bill flawed and dangerous

The Anti-Terrorism Bill (No. 2) 2005 will erode key legal rights and principles and undermine fundamental legal principles, according to the Australian Democrats.

The Democrats' concerns were detailed by Attorney-Generals Spokesperson Senator Natasha Stott Despoja, in additional comments to the Senate Legal and Constitutional Committee's report on the Bill (tabled in the Senate this afternoon).

"In particular, we are concerned about potential breaches of international law; the removal of legal professional privilege; the treatment of children aged 16 to 18; the authorisation of preventative detention and control orders; and the proposed changes to sedition law," Senator Stott Despoja said.

"These provisions are even more disturbing given the lack of access to full judicial review for those subject to preventative detention orders; the lack of review mechanisms in the legislation; and, the extended sunset clause.

"The Democrats were successful in extending the committee's reporting date by an additional three weeks to examine this complex and wide-ranging legislation.

"Under this legislation, children may be preventatively detained with adults, and the conversations between non-suspects and their lawyers can be monitored.

"These provisions fly in the face of international law, including the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention on the Rights of the Child. The bill may also allow advocacy organisations to be punished for the comments of an individual.

"The provisions contained in the bill are particularly worrying given Australia does not have a Bill of Rights or a Human Rights Act. We are the only common law country without such protections.

"The Democrats will move a range of amendments to this legislation, in an attempt to ameliorate its worst aspects and restore protections for ordinary Australians," Senator Stott Despoja said.

Senate terror inquiry falls short: Greens

Senator Nettle, 28th November 2005

The report into the government's Anti-Terrorism (No. 2) Bill 2005 tabled by a Senate committee today has strongly criticised but failed to oppose the bill, Australian Greens Senators Nettle and Brown said today.

Greens Senators Bob Brown and Kerry Nettle who were part of the Legal and Constitutional Committee inquiry have tabled a minority report saying that the bill should be rejected.

"The evidence to the inquiry with the exception of the government, the police and ASIO was critical of the bill. This is reflected in the report but not in the final recommendation of the Senate Committee," Senator Nettle said.

"It is good to see the suggestion that sedition should go but what about detention without charge or trial?" Senator Brown asked.

"There is no way the suggested safeguards can make this bill safe. Innocent people will be locked up in some cases for 12 months." Senator Nettle said.

"The evidence to the inquiry showed there was no need for these new powers. It is a shame Liberal and Labor Senators have toed the party line", Senator Brown concluded.

"The Greens will move to amend the bill to require conformity with the International Covenant on Civil and Political Rights," Senator Brown said.

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