<< back to archive index Speech Regarding a Bill Date: December 3 2002 Subject: Terrorism - Police Powers Legislation From Hansard The Hon. Dr ARTHUR CHESTERFIELD-EVANS: The Democrats do not support the Terrorism (Commonwealth Powers) Bill. The Federal Government has said that we need education on how to recognise a terrorist. I say that we need education on how to recognise a decent foreign policy. If we strut about, slavishly following the United States of America and basically blockading, with the Australian Navy, a country half a world away that had been buying our wheat we will get a reaction. We will identify ourselves as a country that is totally committed to whatever the United States of America does with its foreign policy, and we will get a response of terrorism such as only the United States and Israel seem to elicit. We do not need to be involved in this fight. We have been foolish when we have fought the wars of other countries without any real benefits to our country. This is but another example. The United States of America stands at the crossroads of a global world. Its foolish foreign policy states that this is a global world and it will try to fix the problems of inequality, poverty and disease or else, having achieved a military dominance, it will grab the resources and relish its position of unprecedented power. Sadly, fanned by the military lobby, which needs an enemy in order to keep its large share of the American gross domestic product, and the oil industry, which sees Iraq as one of the few countries still able to increase its oil output, it is grabbing all resources. Its policy is cloaked in fine rhetoric, and that is what it is all about. The Americans may gain something out of this, although I believe that in this global world military might is not the answer. Terrorism at a citizen level can compete with military might and seriously damage even the most powerful country. The Americans may think that they can benefit, but I believe they will not and are making a serious error. They are condemning the world to a far more extreme reaction, possibly for the next couple of generations. The Americans are at the crossroads and they are taking the wrong turn. It is foolish for the United States of America to do so. It is extremely foolish for us to do so-we do not even have the benefit of economic exploitation of the Middle East. While we have folly at a Federal level, sadly we also now have folly at a State level. I hope it is folly, but it may be simply cynicism. If you instil fear you get votes. The net result of this fear, which is then heightened by all the talk of terrorism-and the word "terrorism" is included in the name of the bill-will make people scared of terrorism and have them accept a reduction in civil liberties. The bill also entails a fear of people who are not like us. If governments encourage that fear, life becomes more difficult for those who are not like us in appearance-often that means the Muslim community-and they will suffer vilification. Just as Hitler rose to power vilifying the Jews, the net result of this bill is that the Muslim community or people who wear headscarves will suffer from a reduction in the racial tolerance and harmony that we have built up over a long time. Our place in the world is suffering, appallingly, from our public image. The Australian public has been somewhat shielded from articles that appear in the major editorials in Britain and Europe about our callous attitude to our refugees and our gung-ho attitude to following the Americans through their foreign policies and foolish forays. The Terrorism (Commonwealth Powers) Bill and the Terrorism (Police Powers) Bill are intended to protect the citizens of New South Wales from terrorist violence. However, in reality the two bills are a concession to terrorists. It is foolish to give up our civil liberties. We are believers in liberal democracy, but it seems that the Government is diminishing our democracy because of the potential threats made by people who want to destroy it. Our faith in plurality has been shaken and we are now giving in to terrorists. The police bill itself is loosely drafted; it is rife with loopholes and inconsistencies with other legislation, such that it is inappropriate to attempt to rush it through Parliament without adequate consultation and feedback from appropriately qualified experts. There is no evidence that this kind of legislation is required. The Government has not presented to the public any proof that the New South Wales police service is in any way incapable of protecting New South Wales from the threat of terrorism. There have been no reported instances of prospective terrorists having slipped through the net. Moreover, the Federal Government is at present trying to strengthen the powers of ASIO, which traditionally watches over terrorism. My Federal colleagues have spoken about that bill and produced a minority dissenting report on the conclusions of the committee. ASIO itself has recently broken down the doors of people who attended the Dee Why mosque, though they had offered to speak to ASIO about what they knew about the visit to their mosque by an imam from Indonesia. Rather than talk to them, ASIO broke down the doors and threatened the families, frightening them terribly, particularly the children. What was the purpose of this, and why give people more power when they are doing such silly things? The best way to ensure that New South Wales is adequately protected from terrorist threats is to ingrain a culture of co-operation between ASIO, the Australian Federal police and the New South Wales police service, rather than try to beat each other to the title of police state enforcer. There is a lack of empirical evidence suggesting that increased powers will lead to, or have in the past led to, greater protection of citizens against terrorist threats, or indeed lead to any decrease in terrorist activity. In the United Kingdom, following the 1974 amendments there was no tangible reduction in terrorist activity-evidence that such an increase was not effective in achieving the aims of legislation that weakens civil liberties. Under the new legislation, people within a target area can be searched, without necessarily being a target themselves. This effectively gives police a loophole in the requirement for authorisation, it being sufficient to obtain authorisation for an area only. It is unacceptable that people who happen to be in a target area can be subjected to searches on the basis of where they are, and not who they are or what they may have done. The suspicion does not even have to be based on reasonable grounds, and can be relied on even if it exists as a result of rumour, prejudice or speculation. Furthermore, the area stipulated as coming under the scope of an authority under the bill can be as general as "the State of New South Wales". Potentially, every home in the State could be searched without warrant if a non-specific terrorist threat is identified through intelligence reports. The bill takes away an individual's right to silence. Ordinary people can be forced to answer certain questions and provide proof of their identity, merely because they were in a particular area at a given time, or drove a particular type of vehicle, or fitted a particular description. It should be noted that in 1974 the United Kingdom Parliament legislated to remove the right to silence in situations involving potential terrorism, in response to IRA attacks-what the United Kingdom now sees as a complete removal of the right to silence for suspected criminals. The Government has offered no evidence as to why such a sacrosanct right should be eroded here. Police investigations are more open to political interference as the police Minister can veto an authorisation without having to give reasons, and as such a veto is unable to be challenged. This will compromise the work of the New South Wales Police Force. Furthermore, the concern over political influence on police action is increased when one notes that the very wide definition of "terrorist act", which includes intentional damage to property, could result in the activities of groups such as trade unions-which may not fit into traditional categories of industrial action or protest-being targeted by these powers. In its practical application, the inclusion in the definition of "terrorist act" of actions taken with the intention of advancing a religious cause clearly targets people of a particular religion. This opens the way for unfair targeting of religious groups, an unsatisfactory situation given the current anti-Islamic climate in this State. The authorisation to use such special powers is not open to scrutiny as it cannot be challenged, reviewed, quashed or called into question on any grounds whatsoever before any court. In order to safeguard the New South Wales population from improper use of such far-reaching powers, authorisations ought to be able to be challenged in the New South Wales Supreme Court, in the same way that powers proposed by the recent ASIO amendments can be challenged in the Federal Court. This lack of accountability is potentially worrying when one considers that such authorisation can be grounded on a rumour, or speculation by an officer. Such invasive powers should only be authorised on reasonably certain grounds and should also be open to scrutiny. As a member of the International Commission of Jurists, I support the comments made by former High Court Judge and President of the International Commission of Jurists, Justice Dowd, reported in the Sydney Morning Herald of 27 November 2002. Justice Dowd is quoted as saying that the anti-terrorism measures "eroded citizens' fundamental rights and gave encouragement to oppressive overseas regimes". Justice Dowd said in evidence before the Senate committee inquiry into the Federal ASIO powers bill that the proposed anti-terrorism measures eroded citizens' fundamental rights in "an atmosphere of hysteria". The Law Society of New South Wales expressed its concerns about the bill as follows: There has been no public consultation about the terms of this Bill, and Standing Orders have been suspended to allow its passage to be expedited. The Law Society's Criminal Law Committee has conducted an urgent review of the Terrorism (Police Powers) Bill and highlights the following matters: Wide-ranging Powers Part 3 gives police special powers with respect to people who are suspected on reasonable grounds of being the target of an authorisation or who are in or on a vehicle that is suspected on reasonable grounds to be the target of an authorisation. The powers require disclosure of identity (clause 16) or, without warrant, empower police to stop and search a person (clause 17), a vehicle (clause 18) or premises (clause 19). The Law Society is concerned that these powers will be available to be exercised "whether or not the officer has been provided with or notified of the terms of the authorisation" (clause 14). The Law Society does not understand how a police officer can act under an authorisation, or form a suspicion based on reasonable grounds, if he or she does not know the terms of the authorisation. It is of even greater concern to the Law Society that the powers under this Part can be triggered merely by presence in a "target area", by being about to enter an area or having recently left the area. There is no need for police to "suspect on reasonable grounds" that a person is, was or will be involved in suspected terrorist activity. Further, police are allowed to use "such force as is reasonably necessary" in exercising these powers (clause 21). The application of the powers in the Bill to people or vehicles who are not the target of an authorisation should be predicated on police forming a suspicion on reasonable grounds that the powers must be exercised to prevent a terrorist attack or to apprehend the persons responsible for committing a terrorist attack. Clauses 16 (1) (c), 17 (1) (c) and 18 (1) (c) should be amended accordingly. Lack of Judicial Review Clause 13 means that an authorisation is not subject to any form of judicial review. This limitation is exacerbated by clause 29, which provides that, if proceedings are brought against a police officer for acts done pursuant to an authorisation, the officer cannot be convicted or held liable "merely" because "the person who gave the authorisation lacked the jurisdiction to do so". In other words, the authorisation cannot be contested (except by the Police Integrity Commission) and, if the authorisation was given by someone who had no power to do so, an officer acting on it cannot be held liable. Clause 13 should be deleted from the Bill. Provisions relating to personal searches Schedule 1 Conduct of personal searches is consistent with Part 4 Division 4 of the Law Enforcement (Powers and Responsibilities) Bill 2002. However, the Law Society has sought amendments to that Part and proposes that the following amendments should also be made to the Terrorism (Police Powers) Bill: • Remove: ·current clause 6(2) (presence of parent/guardian/personal representative if practicable), and · clause 6(3) (obligations re same if strip search of a child 10-18 years, person with impaired intellectual functioning) and insert those provisions in clause 5 (Preservation of privacy and dignity during search), so that the provisions will apply to all searches, not just strip searches. Clause 5(5), which provides that police must conduct the least invasive kind of search practicable in the circumstances, should be a separate section in its own right, and be given greater prominence earlier in the Schedule. Inconsistencies with Law Enforcement (Powers and Responsibilities) Bill 2002 Clauses 17(3) and 18(2) (Powers to search people and vehicles) should be amended to be consistent with section 204 Law Enforcement (Powers and Responsibilities) Bill. That is, a police officer who detains a person or a vehicle for a search must not detain the person or vehicle any longer than is reasonably necessary for the purpose. Clause 23 (Supplying officers details) should be amended by deleting the words "if requested to do so" to be consistent with section 201 Law Enforcement (Powers and Responsibilities) Bill. So the Law Society is experiencing many problems in relation to this draconian bill. Unfortunately, if it is experiencing problems how much more ostracised will Australian citizens who are followers of Islam be under this legislation? On 2 December the Islamic Women's Welfare organisation sent me a facsimile in which it said that the last two weeks had seen an unprecedented attack on the civil rights and liberties of Muslims, and Muslim women in particular, in Australia. It stated: It comes as some surprise to us to find that legislation is being introduced in New South Wales to give powers to police officers that severely curtail people's personal freedoms. This comes on top of the Federal ASIO bill that is currently under review. It is the Muslim community who will bear the brunt of these pieces of legislation. In fact, in giving an example, Michael Costa, the Police Minister, even discussed the example of someone of "middle Eastern appearance", and the level of specificity of the description. Yet the focus remains: this is legislation, as Justice John Dowd has pointed out, targeted directly at Muslims. Many people wrongly associate the actions of a vile few with all Muslims. This bill has the potential to make it "official"-and for this kind of suspicion of all Muslims, especially Muslim women, to be sanctioned legally. The laws give powers for police to search anyone once an act of terrorism has been declared, meeting certain criteria. This criteria will inevitably include "middle Eastern people in appearance", thus targeting Muslims specifically. To many people, anyone wearing Muslim dress, even if they are Anglo-Australians, are considered of "middle Eastern appearance". Furthermore, the legislation takes away certain rights of review. For example, the police minister under the legislation is not accountable to anyone under the legislation. Section 13 of the act says: "An authorisation (and any decision of the Police Minister under this part with respect to the authorisation) may not be challenged, reviewed quashed or called into question on any grounds whatsoever before any court, tribunal, body or person in any legal proceedings, or restrained, removed, or otherwise affected by proceedings in the nature of prohibition or mandamus." This is a massive licence that is incredibly open to abuse. This allows the police to frisk search or strip search Muslim women-an issue of particular concern to us. If this legislation is absolutely necessary because of the current situation and it is, as Bob Carr says, an "emergency bill", then why not introduce a sunset clause to ensure that it is properly reviewed. The Australian Democrats also oppose the Terrorism (Commonwealth Powers) Bill. The Senate Constitutional and Legal Affairs Committee report on the Security Legislation Amendment (Terrorism) Bill found many loopholes in that bill. Australian Democrat Senator Brian Greig wrote a dissenting report to that committee's report, which concludes as follows: The Australian Democrats oppose this legislation. The proposed definition of terrorism is incredibly broad, and could catch a range of political activities not remotely connected to terrorism. The exceptions for advocacy, protest, dissent and industrial action are totally inadequate. It is dangerous to assume that no future government will use these excessively broad powers to suppress opposition and dissent. The very broad proposed power of the Attorney-General to ban organisations is entirely inappropriate. It is reminiscent of the failed Communist Party Dissolution Act and has no place in a democratic nation. The bill also takes the unprecedented and unjustified step of imposing absolute liability in relation to offences carrying life imprisonment. The proposed changes to the privacy of e-mail and other forms of digital communication are deeply concerning. These bills are an attack on some fundamental democratic principles and should not be enacted. It is vital that in defending democracy, we do not compromise the very ideals we are seeking to preserve. The Australian Democrats ran a campaign against that Commonwealth legislation. Now we are fighting against a conservative Government in New South Wales. This conservative Government, which pretends to be a Labor Government, is introducing its own legislation to coincide with Commonwealth legislation. I believe that this Government is also trading on fear, just as John Howard traded on fear in Canberra. The Premier saw how John Howard won the last Federal election by exploiting fear and uncertainty. He appears to be taking a leaf out of John Howard's book and is utilising that fear for his purposes. The Motor Accidents Compensation Further Amendment (Terrorism) Bill will just extend the temporary exclusion of acts of terrorism from compulsory third party from the current date of 1 January 2003 to 1 January 2004. Earlier this year when the first bill was debated I said that if people in Zurich did not want to provide reinsurance the New South Wales Government would quickly fix the definition so that if someone was hit by a car driven by a terrorist it would just be tough luck. That is another example of the Government backing out of a problem rather than solving it. It could conceivably come up with an alternative solution without a great deal of thought. We might be small fish-a State Government in a relatively small country-but it would not have been impossible to make WorkCover the reinsurer for acts of terrorism and to have made a small change along those lines for temporary reinsurance cover. I am disappointed that the Government has not been more brave and adventurous. It blames other governments for flogging off the GIO and for not providing a reinsurance company that assesses rates irrespective of fluctuations on the world market after September 11. WorkCover could potentially play that role, a fact that has been pointed out to the Government. The Government capitulated by taking away insurance cover. If Australian citizens are killed their families will be expected to manage as best as they can, presumably with the help of some sort of pension. The Australian Democrats support the Workers Compensation Amendment (Terrorism Insurance Arrangements) Bill, which is an attempt by this Government to establish a reinsurance fund. Overall, the Government has a conservative and timid view of terrorism. It has not made out a case for its draconian changes and it is discarding our civil liberties without so much as a whimper.

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