This speech was delivered on 11/09/2013 in the NSW Upper House. You can read the full debate online here.
CRIMES AMENDMENT (TERRORISM) BILL 2013
Mr DAVID SHOEBRIDGE [11.30 a.m.]: On behalf of The Greens I oppose the Crimes Amendment (Terrorism) Bill 2013. The object of the bill is to amend the Crimes Act 1900 to extend the date until which membership of a terrorist organisation is an offence under the Act from 13 September 2013—this Friday—to 13 September 2016. This substantive terrorism provision in the Crimes Act was brought in as part of a package of so-called anti-terrorism laws following the September 11 incident—
The Hon. Dr Peter Phelps: Just an incident?
Mr DAVID SHOEBRIDGE: —the terrorist incident, and was contained in a package of laws that included the Terrorism (Police Powers) Act 2002. The Terrorism (Police Powers) Act 2002 contains a series of extraordinary powers—which have been described, even by the Attorney General in the other place, as extraordinary powers—including covert search warrants. The covert search warrant regime that has been instituted in New South Wales requires the underpinning of a substantive criminal offence, and the substantive offence has been included in section 301L of the Crimes Act. When that provision was originally included it was put in with a sunset clause. That sunset clause was renewed by the former Labor Government and has again come up for renewal by this Government.It is very clear that sunset clauses do not protect our civil liberties in New South Wales or in the Commonwealth. When part 6B was inserted into the Act in 2005 by the Labor Government the provision of the sunset clause was used, effectively, to avoid a substantive debate about civil liberties. The argument was put that it is an extraordinary set of powers and it is giving unparalleled powers for people to have their houses and their property covertly searched even when they are not a suspect in order to get some evidence about some other alleged terrorism activity or about membership of alleged terrorist organisations. Those covert search warrants are obtained by the authorities after an ex parte hearing in the Supreme Court.
Anyone who has been following some of the sorry tales that have come out of the covert search warrants that were obtained between 2000 and 2001, which have been covered in, amongst other things, the report on Operation Emblems by the New South Wales police, would know that there are real concerns about the only safeguard being an ex parte hearing where the crime authorities are on one side spinning a story to the Supreme Court bench in circumstances where it is very clear that the Supreme Court bench would never have time to read or to properly digest the voluminous materials that have been put before it to allegedly satisfy the requirements for covert search warrants. Yet that is the only safeguard that has been proposed by the Government and it is the only safeguard that was proposed by the former Labor Government.
The Greens have consistently opposed legislation such as this, which propagates covert search powers against citizens, some of whom are suspects and some of whom are just innocent people caught up in alleged terrorism offences, because such laws are not necessary if we have good police using the existing powers and exercising those powers competently and professionally. The simple fact that these covert search powers have not been used since 2006 confirms in practice the view of The Greens that the police do not need these powers, that they are a gross overreach by the authorities and that they are not required to keep us safe in New South Wales.
But both the major parties have shown that they are willing to continue to beat the law and order drum even when it is clear that this approach does not produce results and that, indeed, having these kinds of laws on the statute book poses a substantial risk to innocent people. The Government has not produced any evidence either in the other place or in its presentation to this House that shows that these laws are working, are necessary or are effective. In the absence of such evidence this legislation should be opposed. When this legislation came before the Parliament previously the Legislation Review Committee had this to say about the bill:
- … when these powers were first conferred, the Committee noted in its Legislation Review Digest No 8 of 2005 that covert search warrants were likely to trespass on affected persons’ privacy and property. In particular, the Committee raised its concern with the provision that provided for the covert entry of premises of occupiers not suspected of any criminal activity in order to access adjoining premises, thereby infringing on the rights of innocent people.
- As the current bill seeks to extend the timeframe in which covert search warrants can be executed under the parameters set out in the Terrorism (Police Powers) Act, the Committee reiterates the view it raised in its earlier digest that these powers may adversely affect the privacy of innocent individuals.
I support and commend the review of the Legislation Review Committee on the extent of the powers and the extent of the civil liberties concerns, particularly on the privacy of innocent individuals. There has been an ongoing review of the Federal anti-terrorism laws by, amongst others, the Independent National Security Legislative Monitor, Bret Walker. Mr Walker has identified, quite properly, that investigation and particularly surveillance are by far the most effective powers to meet the threat of terrorism. The problem is—and this was noted by Mr Walker—both the Commonwealth Parliament and, by extension, the New South Wales Parliament in bills such as this have gone considerably beyond what is required to effectively undertake that investigation and surveillance work. These covert search warrants are an example of that significant overreach.
On numerous occasions the Law Council of Australia has indicated its concerns about the extraordinary nature of Australia’s terrorism laws and has urged that when they come up for review under sunset clauses that they not be continued. The New South Wales Council of Civil Liberties has significant concerns about the extent of these anti-terrorism laws and it has, amongst other things, a campaign priority for a comprehensive roll back of those parts of the anti-terrorism security legislation that are unwarranted and constitute a serious threat to our civil liberties. This provision in the Crimes Act would have to be one of the most outstanding concerns for civil liberties. A number of co-authors, Nicola McGarrity, Rishi Gulati and George Williams, have considered Australia’s anti-terrorism laws from a Federal perspective, particularly the sunset clause provisions in Federal anti-terrorism laws. They have observed:
- A frequent criticism of sunset clauses is that they provide a convenient political excuse for shortcutting initial parliamentary debate about controversial legislation, thereby postponing the substantive debate until the legislation comes up for expiry or renewal. Of even greater concern is the suggestion that a sunset clause operates as the “spoonful of sugar that helps controversial legislation go down”. That is, legislation which would otherwise have been blocked by the parliament is allowed to pass on the basis that it has a limited life span.
They then note:
- The one piece of federal anti-terrorism legislation subject to a sunset clause that has come up for expiry has (far from being allowed to expire) been renewed for an even longer period than was initially the case.
That was part of the Australian Security Intelligence Organisation legislation amendments in 2003. Again, in this place we have seen a failure by either of the major parties to grapple with the civil liberties issues that are exposed with the continuation of this provision in the Crimes Act and, by continuing that provision, the continuation of the ability to use covert search powers under the terrorism laws of 2002. There are substantive concerns about section 310J of the Crimes Act, which is the provision relating to membership of a terrorism organisation, and how someone becomes convicted of an offence of being a member of a terrorist organisation. In this regard I note that the most recent Legislation Review Digest states:
- Section 310J(2) provides that a person is not guilty of the offence of membership of a terrorist organisation if the person proves that he or she took all reasonable steps to cease to be a member of the organisation as soon as practicable after the person knew that the organisation was a terrorist organisation. In this way, section 310J(2) requires an accused person to disprove a presumption that they were guilty of an offence that attracts a maximum penalty of 10 years imprisonment.
In other words, there is a reverse onus on persons; if they cannot disprove that they took all reasonable steps to cease to be a member of a declared organisation they face up to 10 years in jail. That is deeply contrary to our tradition of liberty that comes from the English common law that a person is innocent until proven guilty, and it is a massive over-reach from the State. If the State has evidence and can prove that a person is a member of a terrorist organisation and continued to be a member even after it was declared, it should be able to prove its case and not rely upon the failure of citizens not to prove their innocence, as this legislation proposes. In relation to that concern, the Legislation Review Committee noted:
- The Committee notes that the Bill extends for 3 years the application of section 310J(2) of the
Crimes Act 1900
- . Section 310J(2) requires an accused person to disprove a presumption that they are guilty of the offence of being a member of a terrorist organisation. Therefore, in the Committee’s view the Bill may violate the right of an accused person to the presumption of innocence. The Committee refers this matter to Parliament for further consideration.
As with almost every substantive recommendation and notation by the Legislation Review Committee, the Parliament has ignored it; it has not even referenced it in this debate. Time and again we hear a few small words from the Opposition, a few small crumbs are thrown out, about concerns about civil liberties; then it inevitably votes for—or when in government it progressed—bills that attack our civil liberties. The absence of proper parliamentary debate when these matters come before the House should disturb anyone who is concerned about long-term liberty and our existence as a liberal democracy.
We continue to hand over these kinds of extraordinary powers to the authorities without even a whimper, a mention or a serious debate about the consequences in the Parliament. It is an indictment on this House and particularly on the other place that this legislation goes through without a substantive debate about the need for such powers, without substantive consideration about how the Federal Attorney General can, simply by fiat, declare organisations to be terrorist organisations and without a substantive review. None of these matters arise for debate in this House; it is simply ticked off, like most other erosions of our civil liberties. It is time members of Parliament respected that tradition of liberty that liberal democracies need to continue to survive.
