The terror laws imbroglio has reached crisis point for the Government. It has rapidly developed into a passionate and overdue debate about core Liberal values, and across the factions some talented, articulate and ambitious backbenchers have put their foot down and said no. More than that, at least one junior minister has whispered “Good on you” to backbenchers leading the charge against the package.
There’s an element of atonement in the determination of a couple of backbenchers. They know that Kim Beazley rightly rejected Howard’s truly appalling first border protection bill, and that this could have lost him the election. They want Howard to know he can’t have carte blanche to trash traditional liberal values based on that precedent, where some Liberals kept their mouths shut to win an election.
Howard called a special Cabinet meeting for 4pm yesterday to work out how to close down this embarrassing public split. I have no information about what took place in Cabinet. It could have endorsed Daryl Williams’ latest compromise offer to put to the backbench or, more likely, decided that John Howard would take the whole thing over, listen to backbench concerns, work out a final position, and move on.
As the Herald reported today, last night’s joint party room meeting did not resolve the impasse between Daryl and the backbench. An edgy government neither announced that the special meeting would take place or gave the usual post-meeting media briefing. MPs were sworn to secrecy. When we asked the Prime Minister’s office last night for a post-meeting comment, we were told the PM would put out a statement today. He didn’t.
Another problem for the government is that it has not announced changes to the package already agreed between Daryl and the backbench. If the silence continues, community protests will focus on aspects of the legislation Daryl has agreed to tone down. But it’s pretty hard for the government to announce agreed changes when there’s still disagreement. What a mess!
The meeting began at 6.30pm last night and lasted for half an hour. My sources say Daryl gave his usual muttering performance and gave no compelling reasons why his will should prevail. Howard watched from the sidelines.
Williams has been backing down all week – he’s already offered a significant tightening of the definition of “a terrorist act” which appears to have satisfied the backbench. There are still two sticking points.
Daryl wants to keep the reversal of the onus of proof for his new terrorism offences. Not one person at the meeting supported him. The speakers against included Petro Georgiou (Lib, Victoria), Bruce Baird (Lib, NSW), Julie Bishop (Lib, Western Australia) and – to the shock of all present – Bronwyn Bishop! Is this part of her payback to Howard for dumping her from the ministry?
She also led the charge on the other sticking point – the power to ban political organisations. Daryl has been sliding on this one all week. First he offered to relieve himself of the sole power to ban, and that instead four ministers would decide and banned organisations could get a review on the merits by the Courts. Last night, he suggested that bans be imposed by the Parliament. The party room split.
This issue is opposed by some as a point of high principle. Former Queensland barrister and Howard favourite George Brandis – who Howard chose as defence counsel at the children overboard inquiry – is implacably opposed to proscription. In the party room, Williams found a supporter in Christopher Pearce, the bloke who triggered Howard’s change of fortune last year when he won the Victorian seat of Aston in a crucial byelection. Discussion centred on alternatives to proscription.
The backbench did not endorse Daryl’s latest offer. Howard said he would “take it all on board and come back to the party room”, a source said. Crucially, he praised the backbench, not lectured it on the need for unity. He said he would ensure the party room process continued to have “the credibility and integrity it is showing in this case”. I suspect leadership tensions are a factor in Howard’s appeasement, as most of the strongest opponents of Daryl’s assault on civil liberties are Costello supporters.
So where are we? Neither the Government’s or Labor’s position is finalised as we head into a month of campaigning by opponents of the package. The Senate resumes sittings on June 17 – on June 11 the parliamentary committee examining Daryl’s bill to give ASIO police-state powers will hand down its report. My guess is that, as with the terror committee, this one will unanimously propose amendments. This is a conservative committee for Labor – two former defence ministers Kim Beazley and Robert Ray are on board.
If Daryl has learnt anything – and if he hasn’t I’m sure Howard will give him a few pointers – he’ll get a draft of the recommendations from Liberal committee members and try to get agreement from his backbench and Labor before the report is released.
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Today, Labor Senate leader John Faulkner’s speech on Labor’s approach to the terror legislation – its current bottom line. Caucus agreed to a long list of amendments on Monday, but has refused requests from the media and the minor parties for the list. This failure suggests that Labor open to horsetrading with the government.
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Labor’s bottom line?
Senator John Faulkner, speech to the Senate, May 16
The events of September 11 sent a tremor through the world. Many innocent lives were lost at the hands of terrorists. There is no doubt that as a result we had to urgently recalibrate our domestic security laws and capability. Of course, the government did not schedule parliamentary sittings until three months after the elections. When it did, it scheduled only nine weeks of sittings, six for the Senate, in the first six months of the year.
It did not produce its legislative response to September 11 until 12 March this year. When it did introduce its package of five security bills, it tried to force the opposition to pass the legislation within 24 hours of the bills’ introduction by bringing them on for debate on 13 March. No time was allowed for scrutiny, no time for discussion or consultation and no time for considered thought.
Fortunately, the opposition was able to insist on the bills being referred to the Senate Legal and Constitutional Legislation Committee for examination. In an acknowledgment of the urgency of the legislation, we agreed to a reporting date which facilitated consideration of the bills as soon as the Senate resumed on 14 May. We also offered to agree to a commencement of 12 March for the bills if we were satisfied with their final form. In the short time available to it the committee did an outstanding job in scrutinising the bills, and I will have more to say about the committee’s report shortly.
Now, eight months after the event which prompted this far-reaching package of national security laws – certainly the most far-reaching since the Second World War-the bills which the Howard government, by its own admission, says provide for extraordinary intelligence gathering and coercive powers have still not been brought on for debate.
The parliament bears a heavy responsibility in dealing with this legislation. We must be vigilant in ensuring that, as far as possible, Australia is safeguarded from international terrorism. We also have a responsibility, given that terrorism knows no borders, to help protect others from terrorist attack. At the same time, we must be equally vigilant in defending the democratic values we hold dear.
As we in the parliament consider the bills, it is worth recalling how governments have handled such matters in the past. In two world wars Australian governments responded to perceived threats with draconian national security laws. Large numbers of Australian citizens of German or Italian descent were arrested and held in internment camps. Many lives were disrupted, indeed ruined, often on the basis of little more than malicious gossip.
The postwar Menzies government also secured the passage of the Communist Party Dissolution Act in 1950. The Act dissolved the Communist Party and provided for persons to be declared communist and subject to sanctions. Fortunately for the future of our democracy, the act was struck down as unconstitutional by the High Court and rejected by the Australian people at a subsequent referendum. Fifty years later, the Howard government’s anti-terrorism bills risk repeating past mistakes, and pose very significant challenges to civil liberties and democratic freedoms.
The Senate committee, to its credit, has shown itself to be both alert and responsive to these risks. The committee provided a forum for 421 individuals, community groups and eminent lawyers to air their concerns about the government’s proposals. Almost all stated that, unless significantly amended, the bills would erode rights and freedoms that are a fundamental part of our democratic way of life.
As well as those submissions, I – like most of my fellow members of parliament – have received thousands of emails communicating similar concerns; not one that I received supported the bills. The government must not ignore the unanimous report of the Senate committee, a committee which is chaired by a government senator and on which the government has a majority.
Labor shares the committee’s strong concerns that the definition of terrorism is too broad and may criminalise activities which are not terrorist acts, that the offence provisions involve an unacceptable reversal of the onus of proof and that the proposed proscription regime gives the Attorney-General extraordinary and unwarranted power to unilaterally and arbitrarily ban organisations to make their activities illegal.
Overwhelming evidence to the committee from the community and experts has shown that the draft bills contain sloppy definitions and are riddled with unintended consequences. If law, these bills could lead to draconian consequences for innocent people. They are not good law. In a very out of touch commentary last week the Attorney-General, Mr Williams, said: “We believe the community is prepared to make sacrifices of individual civil liberties in order that the community generally is protected from those threats.”
Perhaps it is time that the Attorney-General and the government tuned in on these issues. Australians will not sacrifice their freedoms lightly; that much is crystal clear from the Senate committee process and the enormous amount of correspondence that has been received by all parliamentarians.
Labor believes that if the legislation is drafted properly, sacrifices of civil liberties will not be necessary. With improved drafting and tighter definitions peoples’ rights will remain protected. Labor will be vigilant in the fight against terrorism and equally vigilant in protecting Australians’ democratic values and freedoms; we are absolutely committed to safeguarding both.
Some people question why this legislation is necessary at all. To them I say that September 11 was a quantum leap in the scale of international terrorism. A `business as usual’ response is not enough. An enhanced level of terrorism requires an enhanced response capacity, both legislative and operational. The legislative framework we have to counter terrorism is outmoded and inadequate. It does not specifically criminalise the full range of terrorist acts. For example, the training and financing of a terrorist organisation is not captured.
Australia also needs to play its part as a good international citizen to combat international terrorism. Two of the bills in the government’s package give domestic legislative effect to our obligations under United Nations conventions for the suppression and financing of terrorism and terrorist bombings. Australia also supported United Nations resolution 1373, which was passed on 28 September last year. That resolution requires United Nations member states to prevent and suppress the financing of terrorist acts, criminalise the wilful provision or collection of terrorist funds by their nationals and freeze the assets of those connected with terrorism.
It also requires member states to take necessary steps to prevent the commission of terrorist acts, to ensure that terrorists, their accomplices and supporters are brought to justice and to ensure that terrorist acts are established as serious offences in domestic laws and that the punishment duly reflects the seriousness of such acts. This package of legislation gives effect to our obligations as expressed in that resolution. That is its aim.
The Labor Party supports tough laws against terrorism and terrorists, but those laws must target the terrorists. We must remember not only whom we are fighting against but also what we are fighting for. When these bills come on for debate, Labor will be moving amendments so that we can fight terrorism without sacrificing key elements of our democracy. Labor will be moving a number of amendments to the bills to correct what we believe are serious flaws. Our amendments tighten the definitions, protect important principles of liberty and, importantly, save the bills from serious questions regarding their constitutionality.
Key amendments
Similar to the problems with other aspects of the legislation, there are potentially unintended consequences from the bills’ proposed definition of treason. In particular, we are concerned that humanitarian activities, such as Care Australia or the Red Cross, are not caught up by this poorly drafted definition. Often, such groups are helping people in a situation where the politics and sides are not clear. Their motive is to help people, and the definition of treason needs to be redrafted so that they can do their important humanitarian work without fear of being charged with treason.
The proposed definition of terrorism is sloppy and will potentially have significant unintended consequences. I understand why people have reacted so strongly to them. Labor will be making sure these laws target terrorists and no-one else.
The definition of a terrorist act is very important because it is at the core of the bills. Clearly, the definition is very wide, and we are concerned that civil protests may be criminalised as terrorist acts under the definition. For example, farmers, unionists or other protesters marching, blockading or mass emailing could fall within the definition as soon as their actions were unlawful in any way-be it trespass, nuisance, property damage and the like. The proposed definition does not distinguish terrorist violence from offences or forms of violence covered in other acts. Labor believes the definition must refer to the use of violence to influence the government or to intimidate or coerce the public or a section of the public.
The onus of proof has been reversed in many of the offences so that people facing life sentences will have to prove their innocence, as opposed to the prosecution having to prove their guilt. Labor does not supportreversing the onus of proof for the offences created by this legislation. The presumption of innocence is a cornerstone of our law. It is reasonable to expect the prosecution to prove the elements of an offence before a person is sentenced to life imprisonment.
It is also reasonable that the prosecution be required to show the requisite intent for each of the offences. Frankly, if someone does not have the knowledge or the intent, they are extremely unlikely to be terrorists and should be dealt with according to other criminal laws if and as appropriate.
We are not convinced that emails should have any lesser protection than telephone calls-that is, you need an interception warrant that offers appropriate privacy protections, as opposed to a search warrant.
I now come to what is, for many in the parliament and in the community, and for me personally, the most significant issue in these bills-that is, the proposal to give the Attorney-General the power to ban organisations at the stroke of a pen. Personally, I am strongly opposed to proscription in any form. The government is proposing that the Attorney-General, or any other minister he nominates, can ban an organisation simply by issuing a press release – no warning, no hearing, nothing. In our view, that is totally unacceptable.
Labor has never supported, and does not support now, giving such incredible arbitrary powers to any minister of government. Such powers are too open to abuse. Australians need to think very carefully not only about expanding the powers of a government that has so often abused the powers currently available to it but also about giving an open cheque to future governments. Australians have never accepted that the civil liberties of a group of people could be wiped out by the stroke of a pen by a single minister. That is why they opposed the anticommunist referendum in the early 1950s; that is why the public will not swallow these bills in their current form.
Labor’s case
Proscription generally works for a government if the organisation they want to ban is visible, has a known membership and, usually, is also a political or industrial organisation. Governments, historically, have proscribed for political advantage – the Nazis, communist regimes, the South African apartheid regime. Historically, proscription has been a tool of political repression, not law enforcement.
But the terrorists of the 21st century are not on the radar. They are very secretive, loose networks. They do not necessarily have any label. Terrorist groups split, evolve and mutate just like viruses. They may have names, they may change their names or they may not have names at all. Why risk the democratic rights of any non-terrorist visible organisation at the expense of the invisible murderers and give a government of the future the ability to exercise massive power against its political rivals?
Proscription is simply an administrative step to put in place a preliminary fact or status before criminal proceedings. It will be a honey pot for practitioners of administrative law. The hard-headed, effective approach is to properly define the offences and let the police, intelligence service and the courts do their jobs.
Let me just ask: if the Prime Minister or the Attorney-General suddenly announce that we have banned, say, Al-Qaeda, how much safer would Australians feel? I suspect not much at all. The point is, we need to target terrorist acts and terrorist organisations, not the names of organisations which can be changed from one minute to the next. You will never get an up-to-date list of terrorist organisations.
But, apparently, the government’s concern is that the evidence required to prosecute terrorists is too sensitive to be exposed in the courts. But the courts are ready, willing and able to deal with highly secretive and sensitive evidence. They do that every day in murder, fraud and espionage cases. Of all the arguments supporting proscription, the need for secrecy surrounding the Attorney-General’s decision is the flimsiest argument of all. Courts can hear evidence in camera or make non-publication orders. The courts do have the tools to handle these sensitive matters.
Labor has proposed a set of legislative mechanisms to target terrorists, their actions and their organisations-what terrorists do and what they intend to do. We support legislation that will cut off terrorist funds. We support the legislation that classifies terrorism as a heinous crime and puts terrorists in jail for 25 years.
Labor’s proposals will target the people in terrorist organisations, not the name of the organisation, and Labor will not at all target those who are not involved in terrorist activities. Our model will target terrorists; it will not target innocent bystanders.
Proscription is a clumsy and unsophisticated approach to dealing with sophisticated terrorist organisations. Every lawyer that we have spoken to, conservative lawyers included, think that the proscription of organisations is a very bad idea. Most of the commentators in the media – again, including some very conservative people – also think it is a bad idea.
Maybe the government believes it can wedge the opposition on this issue but, if so, that is not a good reason to make bad law. Robert Menzies tried to wedge Labor in the 1950s by banning the Communist Party and, even though the vast majority of Australians did not like communists or communism, they voted down a referendum because proscription was a bad idea and because they thought it was antidemocratic, And they were right.
The Australian people were right then; they are right now. We do not need proscription to target terrorism. We need tough measures, and Labor will support tough measures. But we will not support those measures in the form proposed by the government. The bills need to be substantially amended, and it is our view that that is the task that lies ahead of this Senate when the government determines they be brought on for debate.