Senator Trood (Queensland) (6:22 PM) —One of the many profound consequences of the terrible terrorist attacks of 11 September 2001 was the need for governments around the world to assess their capacity to deal with this new and frightening threat of international terrorism. One of the needs, in many cases, was for the introduction of domestic legislation to try and deal with the new challenge that appeared. That meant in Australia, as elsewhere, quite a large amount of legislation which tried to provide a balance between the protection of rights that we treasure and civil liberties that we have taken for granted and the need for public and national security.

There is always a risk when governments act in a new area like this—particularly when they introduce quite wide-ranging legislation—that well-established civil rights, ones that citizens have enjoyed for a long period of time and take for granted, might be compromised. So governments have to strike a balance. They have to strike a balance between individuals’ rights—at least in a democracy they do—and the provision of national security, which is increasingly demanding. It is not an easy balance to strike. Terrorism is a profound challenge to this society and many others. It ought not to be underestimated. It requires governments to take measures which might not in the past have been acceptable to either the government or its citizens. But the Australian public, like other publics, are entitled to expect that a government will do all it can to provide for their personal security and the national security. That is what I think that much of the legislation which has been introduced in Australia does. It seeks to provide that level of security, that level of confidence, that we can meet the kinds of challenges with which we might be confronted. There is plenty of evidence in relation to the success we have had in meeting many of these challenges. That said, it seems to me that governments need to be cautious about the way they act in this area. They need to be careful about stripping away civil rights that are part of the fabric of our democracy and are the foundation of our freedom.

It is in that context that I particularly welcome this piece of legislation, the National Security Legislation Monitor Bill 2009 [2010], because it seems to me that this is a piece of legislation which has as its central purpose the creation of a safeguard, an independent reviewer, to ensure that Australia’s counterterrorism legislation is effective but also contains appropriate safeguards to protect the rights of individuals in this society. This is not a new idea. It is an idea which has been in practice in the United Kingdom for quite a number of years. The independent reviewer of terrorism laws is an office that has been in place in the United Kingdom for quite some period of time. By all accounts, it has been a successful innovation in the protection of interests. The work of the office is widely acclaimed. So we have a precedent which is being applied in this legislation. However, there are some important differences between this legislation and the United Kingdom legislation. Regrettably, some of those differences, in my view, make the office that is proposed under this legislation likely to be rather less effective than the office in the United Kingdom.

I want to look at some of the shortcomings of the bill, as I see them, in the short time that is available to me. Before I do, I wish to acknowledge the considerable debt that I think all Australians have, in relation to the protection of their civil liberties, to Mr Petro Georgiou, the honourable member for Kooyong in the other place. Mr Georgiou has a long and distinguished record of supporting human rights in Australia. It was Mr Georgiou, not the supposedly human rights oriented Rudd government, who first proposed that there be an independent reviewer.

Senator Brandis—Where did you get the idea the Rudd government was human rights oriented?

Senator Trood —I have never been under any illusions about that point, Senator Brandis, but I think the government is probably under that misunderstanding. But Mr Georgiou was concerned about these things many years ago, long before the government actually thought this was an issue worth taking up. Indeed, when Mr Georgiou introduced his private member’s bill, the Independent Reviewer of Terrorism Laws Bill 2008, alluded to by Senator Brandis in his remarks earlier in the day, the government, with what might be seen as astonishing hypocrisy, refused to support the measure. Now, in a way which is all too typical of how the Rudd government operates, it has introduced its own bill and, regrettably—showing little grace—it has failed to acknowledge the considerable debt that it ought to acknowledge to Mr Georgiou for having introduced his private member’s bill. That said, I suppose one should be grateful that we are actually moving forward on this piece of legislation. I hope it will be—and it can be—an important innovation in the security field.

This legislation avoids some of the weaknesses of the United Kingdom legislation. It has been observed in the United Kingdom, for example, that the absence of a detailed listing of the functions and powers of the reviewer has been a shortcoming, and that has caused some difficulties. That has been avoided in this piece of legislation, and I know that you will be very familiar with this, Mr Acting Deputy President Barnett, having sat—I think I am right in saying—on the Senate committee that examined this particular bill. The bill also proposes sanctions, which are not available in the United Kingdom legislation, for those who fail to assist the monitor, and that seems to me to be an important difference between the two pieces of legislation. So there are some innovations here, some changes, some amendments which I think will strengthen the Australian legislation and make it more effective in achieving the purposes it is designed to achieve.

Regrettably, however, the Australian legislation fails to emulate some of the good examples of the United Kingdom legislation, and, I might say, some of the particular examples which were evident in Mr Georgiou’s legislation which was before the parliament. I noticed, and other speakers in this debate have made this point, that the government has introduced amendments, and to some extent that accommodates some of the concerns that the Senate committee that examined the bill noted in its report and some of the concerns that I have in the legislation. But regrettably, it does not go far enough in addressing those concerns, and Senator Ludlam has mentioned some of these matters in his own remarks earlier.

The most notable weakness is undoubtedly the failure to ensure that the monitor is a person of unimpeachable independence. This seems to me to be an elementary proposition in a piece of legislation of this kind. Instead of creating an independent monitor, the bill creates a position that seemingly will be located within the Office of the Prime Minister and Cabinet, apparently administered in large measure by the staff, and Senator Ludlam referred to the fact that there was an issue of resources here, which remains unclear, notwithstanding the government’s amendments to its own legislation. Witnesses before the Senate, as you will recall, Mr Acting Deputy President, criticised this aspect of the bill most consistently and made the point that this was the single most obvious weakness in the bill. The Public Interest Advocacy Centre made the point that there should be a new independent office completely separate from government, and that seems to me a rather important and sensible point. How can one be confident about the impartiality of this office if it is located within an existing executive portfolio? Surely it is an elementary principle that in setting up an institution to monitor government activity that the institution is itself independent of the government that it is supposed to keep honest. This particular piece of legislation fails this test. To my mind it represents a very large flaw and weakness in the legislation, which has not been corrected by the amendments which the government has proposed.

There is also a weakness in the reporting methods. I noticed that Senator Ludlam has also alluded to this matter. In fact the reporting methods contained within the bill are, to my mind, astonishingly convoluted. It is almost as though the government was determined, absolutely committed, to ensuring that the monitor was unable, or was intended to be frustrated in his responsibilities, to report the findings of his inquiries. This particular provision, which seems on the best of it to require a report by the monitor to the Prime Minister and subsequently the Prime Minister rather than the monitor reporting to the parliament, seems to me to be completely convoluted and completely unnecessary. The reporting requirements are also weakened by the fact that the monitor under the bill would seem only to be able to report to the parliament on an annual basis rather than when he is apprised of things which require attention within the legislation. Why this restriction would be placed defies explanation from my perspective and it is clearly a weakness in the legislation.

Creatively, I thought, the Senate proposed a solution to this problem by suggesting that there could perhaps be two versions of any report, one which was an unedited version for the Prime Minister’s eyes only, and a second edited version which might remove the sensitive material, which might then be placed before the parliament. Sadly, the government in its amendments has decided that this is a bad idea and it has refused to accept this particular proposal.

There are other shortcomings in this bill, some of which the government has addressed, others, sadly, it has not addressed. The narrow scope of the monitor’s role is something that Mr Georgiou has made a point of noting and I think also needs to be recognised. There is a limitation on the range of activities the monitor can undertake and that seems, again, an effort to try and constrain his particular activities.

There is also a restraint, an unnecessary limitation, in relation to the laws that are applied in the matter. The bill requires the monitor to give particular emphasis to the provisions of legislation that have been applied during the financial year or the immediately preceding financial year. So it would seem—and the explanatory memorandum makes this brutally clear, one could say—that the monitor’s powers only extend to those laws which have been used and applied in the previous 12 months. So that would seem to be a restriction on the legislation as well.

There was a suggestion in relation to international agreements. The legislation now suggests that in performing his obligations, undertaking his tasks, the monitor should have regard to Australia’s international obligations in relation to various treaties and protocols. This may be a worthy objective. I think the idea is worthy that Australia should comply with those international obligations to which it has become a party, but there is also a danger here that it might actually neuter, almost completely, the government’s power to legislate in an area of national security. As well, it might impose enormous demands on the responsibilities of the monitor’s office.

The government has already said in response to other proposed amendments to the bill that it does not favour them because it thinks they will place too much emphasis and too many demands on the resources of the monitor. The obvious solution to that is to make sure that the monitor has the resources that he or she needs to undertake his or her responsibilities. I guess we will see whether that actually occurs. I would not be too hopeful, I regret to say.

There is a point to be made here, which is that some international instruments do not yet apply to Australia’s domestic law. They have not been ratified into domestic law. Surely a second issue that deserves some recognition is the fact that the monitor is examining the implications of Australia’s national security legislation. His focus ought to be on the impact of this legislation on the quantum of legislation which applies in Australia. He should not be spending his time examining whether or not we are fulfilling our international obligations, which could be done elsewhere within the system.

With those reservations, I welcome this piece of legislation. I think it adds a necessary level of guardianship over the protection of Australia’s rights in this new area of legislation. It is likely to be an area of legislation which will increase rather than diminish over time. It is likely to be an area of legislation which will be controversial in the years ahead. Of course, it deals with a vitally important subject, which is the security of the nation.

In this context I think I should just reiterate and recognise the particular debt that we owe Mr Georgiou for having put this matter on the national agenda and taken the initiative in relation to the issue, which nobody else chose to do. Finally—and I am grateful for this—the government has seen the wisdom of the private member’s bill that Mr Georgiou put on the agenda and has adopted, at least in part, some of the ideas that are contained within that legislation. This would be a better piece of legislation were some of the other proposals for amendments in the Senate report to be accepted and were the government prepared to release the limitations with which it seeks to bind up the power of the monitor. I hope that before too long it might reconsider the way it is proceeding in relation to this matter.

In the final few moments that remain for me to speak, I take up Senator Ludlam’s point that we are still waiting for the counterterrorism white paper. The last time I asked about the counterterrorism white paper and the progress that was being made, I got a serve from the Attorney-General. He said that they would deliberate on the matter and that in due course it would be revealed. That, I think, was at least six months ago. International terrorism is a clear and present danger. It is arguably the single most important threat to this nation’s security and it is an issue which this government, regrettably, has failed to attend to with the diligence and concern which it deserves. We are all waiting for the counterterrorism white paper. Given the time that it is taking to produce, I hope it will be a damn good paper which will address the concerns which we all have about our security in relation to this important area.