August 26, 2015
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Attorney-General George Brandis ordered a review of laws that encroach on our traditional rights and freedoms – then introduced an even more egregious piece of legislation.
As he has told us many a time, the federal Attorney-General, George Brandis, is a champion of our traditional rights and freedoms.
Of course, there’s a regrettable necessity, owing to the fearful threats to public safety posed by the Islamic State “death cult”, to strengthen our national security legislation. But as the good senator, with typical smugness, told the National Press Club in October 2014: “The side of politics which has in its DNA to keep governments small and to keep freedom large, can be better trusted to handle these matters without overreaching than the side of politics which believes that expansion of the power of the state is the solution to every problem.”
The commission didn’t quite give Brandis what he was hoping for.
Shortly after the Abbott government’s election, true to his concern for our liberties, Brandis asked the Australian Law Reform Commission to identify Commonwealth laws that encroach on “the rights, freedoms and privileges recognised by the common law”, and to determine whether such encroachment “is appropriately justified”.
As a helpful hint to the commission, its terms of reference specifically pointed it in the direction of laws that dealt with commercial and corporate regulation; environmental regulation; and workplace relations. You could see the sort of thing the government had in mind: red tape; green tape; the encroachment of busy-body regulators on our liberty to buy and sell, mine and farm, hire and fire.
(That doesn’t, of course, include the unwarranted liberty, given to environmental groups in a Howard government law, to challenge the federal Environment Minister’s decisions in the Federal Court. That is vigilantism, “lawfare”, an outrageous and illegitimate check on the power of executive government to do precisely what it wants with our air, and land, and water.)
But the commission didn’t quite give Brandis what he was hoping for. Three weeks ago, the commission published an interim report. It identifies hundreds of laws that encroach on our traditional freedoms. And in chapter after chapter – on freedom of speech, on freedom of association, on freedom of movement, on the right to a fair trial, on the reversal of the burden of proof, and on procedural fairness, to name just a few – it found that the most serious encroachments could be found in Australia’s draconian official secrecy, anti-terrorism and migration laws.
Time and again, the commission details objections and questions raised by various watchdogs when the bills came before Parliament – the Joint Parliamentary Committees on Intelligence and Security, and on Human Rights, for example – or later, by the Independent National Security Legislation Monitor. Almost all have been blithely ignored.
Meanwhile, the latest addition to the government’s anti-terrorism arsenal – the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 – is being considered by the Intelligence and Security Committee.
This is the legislation that divided the cabinet so publicly in May. Even Brandis opposed it in its original form. The bill now proposes that any dual national who engages in various types of conduct in support of terrorist groups has thereby renounced his or her Australian citizenship. No need for a trial, or conviction. When the minister becomes “aware” of the (alleged) action, he or she simply “declares” the (alleged) perpetrator is no longer an Australian citizen.
Six weeks ago, I raised questions about this extraordinary piece of legislation. But they were mild compared with the excoriation heaped on it by some of our finest legal minds in submissions to the joint parliamentary committee.
Anne Twomey, professor of constitutional law at the University of Sydney, thinks the bill is “a consequence of making policy on the run and pursuing thought bubbles and sound bites … a textbook example of the sort of fiasco that occurs when [proper cabinet and governmental] processes are not followed.”
The Law Society of NSW says the bill is “inconsistent with the presumption of innocence”.
The Australian Bar Association says the bill seeks “to avoid the prohibition on the executive exercise of judicial power by means of a legal fiction”.
The Commonwealth Ombudsman points out that someone declared a non-citizen “is highly likely [to] spend an extended [and possibly indefinite] period in immigration detention in Australia”. No trial, no conviction, indefinite incarceration.
The Australian Human Rights Commission is surprised “the minister is not required to afford natural justice to an affected person. That means that he or she is not required to give that person a hearing, inform them of evidence the minister has relied on, or give them the opportunity to respond to the allegations made against them.”
Not to worry, we were assured by the likes of Brandis and Malcolm Turnbull – the bill specifically allows for judicial review. But the Human Rights Commission submits that “any judicial review will be extremely limited as a result of the particular powers given to the minister”. The Centre for Comparative Constitutional Studies at the University of Melbourne agrees: “Judicial review is likely to have minimal effect on stemming [the bill’s] arbitrary operation.”
Most scathing of all is the submission by Ben Saul, professor of international law at the University of Sydney: “For a democracy ostensibly committed to liberal values, basic rights and the rule of law, this bill is particularly bad, even by the low standards of some other Australian counter-terrorism laws. It should not be passed … Exiling or banishing Australian wrongdoers is primitive, medieval, simplistic and dangerous.”
Well, you say, there must be another side to this. And maybe there is, spelt out in the submission to the committee from the Australian Federal Police, or in three substantial attachments to the submission from the Department of Immigration and Border Protection. But if so, you and I can’t read them. As is all too typical of this increasingly Orwellian state, they are “confidential to the committee”.
This bill, even more than its dozens of predecessors, severely encroaches on our traditional rights and freedoms, Senator Brandis. And we, the citizens of Australia, are not even allowed to know why.
Jonathan Holmes is an Age columnist and a former presenter of the ABC’s Media Watch program.
Read more: http://www.theage.com.au/comment/tyrannical-citizenship-bill-an-attack-on-our-liberties-20150824-gj6tub.html#ixzz3kNCXNZeb
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