How To Say 'Yes' When You Want To Say 'No'

Since the Senate Committee’s report on the anti-terrorism legislation was published, the debate has improved but perhaps only from tragedy to farce.

The Senate Committee had a problem. The Senators could see the overwhelming weight of the arguments before it that Control and Preventative Detention Orders were bad policy. Their difficulty was that the major parties had already agreed to support these Orders. The Committee’s solution was therefore to recommend a raft of changes to ameliorate the worst aspects.

Without going into detail, the Government has accepted some of those changes but the Control and Preventative Detention Orders and the Sedition changes (somewhat modified) remain.

I have been less concerned by the Sedition changes. Any application of the Sedition laws is likely to rile a powerful interest group with a key stake in free speech the media. And the fact that Philip Ruddock was stupid enough to give himself discretion to prosecute in the area means that any prosecutions would ultimately reflect directly on the government.

Ruddock has agreed to a general review of the Sedition laws by the Australian Law Reform Commission. The Commission will likely conclude that Sedition laws are unnecessary and one hopes that will be the last we hear of them.

What is more interesting is what politicians actually said about both this Bill and the NSW Bill, both of which have now been passed.

The Federal Liberals have largely stuck to their script although the more forthright like Malcolm Turnbull, Petro Georgiou and Judi Moylan flatly attacked the Sedition proposals. Perhaps that criticism emboldened the Senate Committee to recommend deletion of Sedition from the Bill.

The Labor Party was more entertaining simply because of the bind that it found itself in. As you will recall, at September’s Council of Australian Governments (COAG) meeting, Premiers and Chief Ministers readily agreed to the Prime Minister’s proposal that he prepare tough legislation on terrorism after he primed them with what he described as an ASIO briefing.

Trusting John
The Premiers have told associates that the PM’s information was that ASIO had strong evidence of significant numbers of terrorists in Australia with access to large amounts of explosive material. Mr Howard is also said to have advised the Premiers that the police were at an advanced stage of investigation in that regard.

The Premiers were already concerned about research that showed the public saw Labor as soft on security issues. When the PM promised that his legislation would be consistent with the International Covenant on Civil and Political Rights, proportional to risks, and would involve the proper judicial oversight, they agreed to the proposals, without seeing draft legislation.

In short, they trusted John Winston Howard.

They also thought that Labor could not risk opposing the proposals with imminent police action possible.

It is easy to be wise in hindsight but the best marker of the Prime Minister’s position is the amount of money he will spend on these changes he does not propose any additional funds for the Federal or State police forces to implement these unprecedented measures. It might be reasonably concluded, therefore, that the whole thing is a sophisticated sham designed to deflect attention from the unpopular WorkChoices changes and the iniquitous Welfare to Work Bill.

Another reason to reach such a conclusion is the dearth of explanation as to why these proposals are necessary at all.

Beazley’s Choice
Kim Beazley has said that he was not consulted by the Premiers before COAG. You have to feel sorry for him because he therefore had Hobson’s Choice he either opposed the PM and his eight State and Territory colleagues, or he supported proposals likely to be very unpopular with one part of the traditional Labor constituency: the civic-minded middle class.

So what did the Labor pollies say about the current Bill? A number of Shadow Cabinet members made speeches supporting Beazley’s amendments, criticising the Government for not accepting them but generally approving of Preventative Detention and Control Orders in a low key fashion. Most also roundly attacked the Government on Sedition.

Notable were the speeches of Kevin Rudd, Wayne Swan and Nicola Roxon. Rudd sensibly ignored the controversial provisions and concentrated on a careful analysis of why the Howard Government’s foreign policy, particularly its invasion of Iraq, has greatly increased the likelihood of the terrorist threat to Australia. Swan’s speech is important because he raised poverty and economic deprivation as a source of terrorist psychology.

Roxon’s speech contains the most sophisticated version of the Labor Right’s position in support of Control Orders and Preventative Detention. Essentially she argues there is something materially different about terrorist attacks that requires a different approach. It is an intelligent speech, revealing her talent, legal knowledge and understanding of the issues. She expands her argument by pointing to what she says is a clear difference between suicide bombers and other criminals. She then expects you to make the leap between such a difference and the need for new laws.

Crucially, she doesn’t say why the current laws are inadequate. Further, it does not seem to me that any material difference between terrorist killings and, for example, serial killings requires a different approach. There is a much greater element of planning to terror attacks than to most other violent crime and they would surely be easier to detect as a result. Roxon further says that terrorists are less affected by punishment and deterrence but criminals generally think little about punishment and deterrence.

Let us come back to the bedrock argument what is the deficiency in the current law which necessitates these changes. The Law Council of Australia cannot find any gap and under vigorous cross-examination from Liberal Senator Brandis in the Senate Committee hearings, John North, (LCA President) was unshakable.

Lawrence and Melham
Two really fine speeches by Labor MPs in the debate were by backbenchers Carmen Lawrence and Daryl Melham.

Dr Lawrence absented herself from the House when the votes were taken, presumably to avoid having to support the Bill overall. Her speech was careful, logical, temperate, well-researched, comprehensive, eloquent, questioning and uncritical of her colleagues and those who disagree with her. It was also right. She fearlessly concluded that her party should not have countenanced support for Control Orders or Preventative Detention.

Daryl Melham’s speech is of a different character. Melham was a criminal barrister prior to entering Parliament and I am told he delivered his speech off-the-cuff while referring to notes. He spoke with an easy command of principle, was lucid and clear in his exposition of fundamental legal concepts and rammed home his views in opposition to the central tenets of this legislation.

On 5 December 2005, the Government guillotined the Bill through the Second Reading stage in the Senate with most Senators being forced to incorporate their speeches in Hansard rather than read them.

On the following day, the Committee stage was shortened absurdly with no time to properly debate most of the amendments. During that stage Senator John Faulkner took a short opportunity to savage the Bill generally, but it was passed largely intact. We now await the High Court’s verdict. What’s the bet that the main problem with the Federal Bill, Control Orders, will disappear down the plughole of unconstitutionality when the Court deals with it?

The NSW Anti-Terrorism Bill
The course of the NSW Bill which provides for 14-day Preventative Detention was quite extraordinary. For some reason, one of the most junior Ministers, Milton Orkopolous was delegated to introduce and read the Attorney-General’s Second Reading speech.

In the Lower House, apart from Orkopolous, Attorney-General Bob Debus, was the only other Minister to speak. In total, 11 Labor backbenchers spoke. Of them, only one expressed no reservations at all, while eight either opposed the Bill outright or said they were supporting it with great reluctance. Liverpool MP Paul Lynch, in particular, was scathing about its provisions. He said, in part:

This is a bad Bill. It is wrong in principle … these laws attack traditional Australian freedoms and protections. They are corrosive of Australian democracy … the Attorney-General was quoted as saying something to the effect that these laws were originally something of which Adolf Hitler would have been proud, but they were now simply shithouse. I respectfully agree with the Attorney’s view.

When it came to a vote, all State Labor members nevertheless voted in support.

The Bill then moved to the Legislative Council where the Minister with the carriage of the Bill simply incorporated his Second Reading speech in Hansard, no Labor backbencher spoke in support of the Bill and the only other Government speaker was the Minister for Ports, Eric Roozendaal, who was the only ALP member of either House to speak strongly in support of the legislation.

The NSW Bill passed into law with only one significant amendment. That amendment was to ensure that the summary of the grounds on which an initial Preventative Detention Order is made is prepared by the Supreme Court and not by the police. This is a welcome change but the procedure under this State Bill is still horribly deficient for the detail see my article in New Matilda Issue 65 (link here).

The one positive is that the Supreme Court must now deal with the Star Chamber procedure as set out in State Act and this may make it very difficult for orders to be obtained. It is rumoured that the Court’s judges are extremely unhappy about this new jurisdiction something which doesn’t surprise at all in view of detention without charge being completely antithetical to our legal culture. Nevertheless, the Supreme Court of NSW enjoys a stainless reputation for integrity and competence and there is some comfort to be taken from the scrupulous attention to the rights of the detainee which police are likely to observe in the judges presiding.

Conclusion
In the end, Federal Labor policy clearly commits the party to support the domestic implementation of Australia’s international human rights obligations including the International Covenant on Civil and Political Rights (ICCPR). The Federal and State legislation appears contrary to the letter and spirit of that policy.

The State legislation is also contrary to the NSW ALP ¹s platform which commits a State Labor government to introduce a Bill of Rights consistent with the ICCPR, its provisions to overrule all other State laws. The platform also requires enforcement mechanisms to ensure observance of the Bill of Rights. This is a tough provision which the Carr Government never saw fit to implement.

Tragedy or farce? You be the judge.