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Anti-terror laws need a watchdog

Cassandra Wilkinson | The Australian | 14 June 2014

As the noisy din continues over wink-gate, dinner-gate and the daily antics of Clive Palmer, some serious policy debates are passing us by with very little review. One of these is the abolition of the Independent National Security Legislation Monitor.

Somewhat disingenuously bundled into the “red-tape reduction” measures, the monitor is no such thing. It stands guard against breaches of some of our most cherished and fundamental rights as citizens.

Britain’s Independent Reviewer of Terrorism Legislation crisply summed up the red-tape burden with regard to civil liberties in his submission to the current Senate inquiry into the monitor’s repeal bill. He wrote that in a robust democracy parliament and the courts are the proper protectors of citizens against government overreach. Needless additional bodies and process should be generally resisted.

However — and it’s a critical however — “Review by an independent person may nonetheless be appropriate where potential conflicts between state power and civil liberties are acute, and yet information is tightly rationed.”

Few conflicts between state power and civil liberties are as acute as the anti-terrorism powers. Even fewer concern information so tightly rationed.

The repeal bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee initially for report by June 2, 2014. On May 27, the Senate granted an extension until August 19, 2014. This interval will hopefully provide time for a revival of the civil libertarian concerns that have motivated both sides of the house at different times to oppose or curtail these special security powers.

It’s hard to countenance now but in those pained early days after September 11, the originally proposed anti-terrorism powers included indefinite secret detention without representation or judicial supervision. There was no age limit on detainees except for a prohibition on strip searching people under 10. There was no right to silence. Importantly there was initially no sunset clause and no independent reporting to parliament.

The then Labor opposition, Greens and Democrats ensured an age limit of 18, judicial oversight and legal representation. The final set of powers were illiberal but stopped short of draconian.

Then a curious thing happened. The Labor opposition became the Labor government. The Liberal government became the Liberal opposition and experienced a revival of its liberal spirits. In 2008 a private members bill was proposed by Petro Georgiou in the house to establish an independent monitor. Quickly gagged by Labor in the lower house it was proposed again by Judith Troeth and Gary Humphries in the Senate.

When Labor caught up in 2010 and introduced its own bill for an independent monitor, the present Attorney-General Senator Brandis, then opposition spokesman, supported the proposal proudly noting the bill, “for all practical purposes is our own”.

Part of the monitor’s job is to ensure laws contain appropriate safeguards for the rights of individuals and remain proportionate to any threat to national security. The job was given to highly respected barrister Bret Walker, SC, in April 2011.

Among the things we know thanks to his work is that the AFP reportedly considered applying for orders on occasions where insufficient evidence existed to prosecute and on further occasions when no charges had been laid.

As has been said by the new government, the last government largely ignored Mr Walker. The Coalition was justifiably critical of its predecessor’s inaction but now wants to have it both ways, arguing simultaneously that the monitor’s recommendations should have been addressed and also that the monitor should be abolished.

A submission from the Gilbert and Tobin Centre for Public Law argues the monitor must remain “for as long as the exceptional criminal offence provisions, special measures of detention and control, and also vast investigative powers enacted in the wake of September 11 remain in force”. The September 11 laws were originally due to expire in 2006. A 10-year extension was given then and the sunset clauses are now due to take effect in 2016.

The NSW Council for Civil Liberties has submitted to the Senate, “there is deep concern that if these laws are not repealed in 2016 they will become a permanent and damaging feature of Australian law”.

Senator Brandis foresaw as much during the debate in 2010 arguing that an independent monitor would be vital to ensure the laws “are not allowed to become ordinary measures by the effluxion of time”.

A guardian’s work can never be complete so long as the threat it stands guard against remains. Just as our security agencies may not rest until the threat of terrorism is gone, so those who protect our civil liberties cannot rest until these extraordinary powers of the state over citizens are gone.

Cassandra Wilkinson works for The Centre for Independent Studies.