Friday, November 04, 2005
I had lunch yesterday with my old Pimlico High friend Marcus Hassall, whom I haven’t laid eyes on for at least 15 years. Well, except for the week before last, when I ran across him in the city – or rather he saw me, said “Hi Dave” in an oh-so-casual fashion, and then bemusedly watched me wander on with a muttered “Oh hi” of half-recognition. About ten steps later I worked out that this wasn’t just a face I vaguely recalled from around the office, and turned around and walked back with a very embarrassed grin on my face.
Ahem. Anyway, we sketched in a rough outline of the last 17 years over lunch. He’s been doing various legal work since he finished his degree, and now he’s with the DPP’s office. He’s getting married in February at the Carrington to a South African émigré named Kirsten. They have bought a house out in the far west of Belconnen, which they’re renovating.
There’s more details to fill in of course, but you should probably just drop by and say hello yourself.
From yesterday’s Senate Hansard
9 smartarse remarks
Well, I haven’t put anything remotely political in this here blog for a while now, but the following bears wider circulation.
Senator MURRAY (Western Australia) (2.56 pm)—I am unaccustomed to hearing Senator Faulkner speak so briefly. Since I have been dragged across the continent to pass the Anti-Terrorism Bill 2005, I would have felt obliged to talk on the bill anyway, just to justify the effort. I will use the occasion to make remarks on the question of our liberties, but first I will talk about this bill. Records and first-time events are always interesting. In 104 years, I think this must be the first ever special recall of the Senate just to change one word in one piece of legislation. In fact, in the grand spirit of this momentous moment, the Senate should bring this to the attention of the Guinness Book of Records. I suspect they would confirm that this is the first time in the recorded legislative history of mankind that any country anywhere has recalled its legislature specifically to change one word in one piece of legislation. But what a word! ‘The’ must be changed to ‘a’,’ the Prime Minister roared. ‘I agree,’ squeaked the opposition leader: ‘Now. Yesterday. Send helicopters!’ ‘No, calm down. Qantas will do,’ said the Prime Minister.
Qantas could not rustle up a connecting flight at short notice, so I left at 13.20 Western Standard Time on Wednesday. I had to sleep over at Melbourne airport, and I got to the Senate 16 hours later, this Thursday morning. But I would do anything if it meant changing ‘the’ to ‘a’. This, after I got home to Perth on Tuesday at midnight Eastern Standard Time after two days of Senate finance and public administration estimates committee hearings. On Wednesday morning in my Perth office I was greeted with the breathtaking news that I was called back to Canberra for a special Thursday Senate hearing to change the definite article ‘the’ to the indefinite article ‘a’. I knew then that this must be really, really serious. I knew then that the fate of the nation must be at stake. Changing that word would definitely stop any terrorist in their tracks. I could see the mullahs going out and finding Osama somewhere in his lair and saying, ‘Stop! Stop! The Senate has changed “the” to “a”!’
This definitely could not wait four days until Monday, when the Senate sitting was scheduled. These four days will make all the difference, won’t they—even though the terror alert stays unchanged, exactly where it has been for four years; even though right now we have laws that can see anyone intending a terror act grabbed, nabbed, charged and denied bail under conspiracy or individually. This bill will surely make all the difference, won’t it?
If in the next four days no-one is charged under the new law, we will know it is just politics and posturing, designed to exaggerate a public fear and to put pressure on the Labor Party and the Labor premiers—it seems to be an easy thing to do these days. It is about power and politics, that is all—same old, same old. It is not about an emergency at all. It is just another exhibition of group think. It is just another manipulation of the gullible. What is needed instead is a heavy dose of good old Aussie cynicism and disbelief. Where are all the political cartoonists and satirists when you need them? Where are the journalists prepared to shout, ‘The emperor has no clothes’?
I saw a comment the other day trying to place terror in the scale of things the government must address. Statistically, terror deaths and injuries may well rank far behind the death toll from alcohol, drugs and tobacco related consumption, from asbestos and chemical exposure, from road trauma and from suicides caused by paedophile priests and paedophile others. But the government and the public are still right to take terrorism very seriously indeed. I support them taking it seriously, and that is why I object to and resent them not taking it seriously with this display today. I object to and resent them minimising and trivialising what is a very serious matter. I support maximising our ability to respond effectively to terrorism within the boundaries of the rule of law under the principles of liberal democracy. I support us maximising our efforts to address the causes of terrorism. I support this bill too, minor as it is, even if I do find this recall four days early to deal with it a contrived and pathetic overreaction.
I am not going to attempt to address the new antiterrorism legislation today. That will, thankfully, now be better addressed by a Senate review process originally intended to be shortened to 8 November but now given an extra three weeks. When I turned to Senators Bartlett and Stott Despoja on the Senate floor that day and said, ‘Go for 28 November,’ I am glad they did and I am glad we succeeded.
What I want to say briefly is that intellectual and legal analysis of the antiterrorism legislation needs to be accompanied by the dominance of values and beliefs— of liberal democratic values and beliefs, not conservative values and beliefs, not authoritarian, antilibertarian values and beliefs. It is not strength to turn back on our legacy. It is not strength to undermine and diminish the protections we have. It is not strength to give the police powers which cannot be reviewed by the judiciary or cannot be restrained under review. It is not strength to create secret police or political police. That is weakness. Strength is standing up for our traditions, for our conventions, for all the things that the soldiers and sailors and airmen of Australia have fought for through several wars. Strength is defending our liberal democracy and its values and the rule of law.
We have marvelous police women and men but you cannot take the idiot factor out of large groups of people. There will be a minority who will abuse powers. There will be a minority who will behave in a way which will result in harm to members of the community. There will be a minority who will make mistakes. That is why you want the separation of powers. That is why you want the rule of law. That is why you want police integrity commissions. That is why you want review processes. That is why you want judicial oversight. That is why you want warrants only being granted by the judiciary and magistrates. That is why you need the protections, because there is always a minority who abuse power. Everyone in this chamber, everyone in this country, knows that there has been a royal commission into the police in just about every state of this country. Everyone knows that the majority of police men and women do a wonderful job but that a minority caused those royal commissions. Everyone knows that innocent people have been convicted because of standover tactics, mistakes and abuse. If you give people powers and you do not have the proper protections and controls over those powers, you have a problem.
What has offended and concerned people who defend the liberal democratic values on which this great country is founded is that the government is asking us to trust and give powers to people who have proven in the past that they do not warrant being given that trust and those powers. They need, for their own good as well as for ours, the protection of the rule of law and of habeas corpus. I will repeat that: of habeas corpus, which all our fathers fought for, and for the ability of people to be considered innocent until proven guilty in a court of law under our system. It is not weakness for me to stand and repeat those tenets of liberal democracy. That is strength. What is weakness is to override them and to try to confuse people that what you are about is in fact preserving the very rules that you are violating.
I want to give you an example. I am ashamed to say that it is an example from my own state. I am ashamed to say that it is from a person who was educated at my university. I am ashamed to say that it is of a person whose intellectual history, knowledge, training, education, principles and beliefs should rule otherwise. I am talking about Geoff Gallop, the Premier of WA. WA’s Terrorism (Extraordinary Powers) Bill 2005 proposes that the police commissioner can issue search warrants if a person in any jurisdiction has grounds for suspecting that a terrorist act is going to be committed. This means the police commissioner—or, if the police commissioner is unavailable, anyone down to the position of superintendent—can issue a warrant without an objective assessment of evidence simply on someone’s personal suspicions. This proposal offends the fundamental protection afforded us by the separation of powers and the independent judiciary. Only judges or magistrate should issue warrants.
There is also no provision for a review of this decision even if it is later shown that this personal suspicion was false or nonexistent. Clause 20 unambiguously says that the decision to issue such warrants cannot be:
...appealed against, reviewed, quashed, challenged, or called in question, before or by any person acting judicially or a court or tribunal on any account or by any means.
This is absolutely outrageous. This is not a fight between the Labor Party and the Liberal Party or between the crossbenchers and the other parties. This is a fight by people who support, protect and defend liberal democracy against those who are conservative and authoritarian from any party. It is absolutely outrageous.
Premier Gallop has said that this legislation is to protect WA’s unique lifestyle. Nonsense! It strikes at the very heart of what makes WA a great place. It attacks a fundamental aspect of a civil society. Such powers are typical of a police state, and we should not be making WA into one. People too easily say, ‘You can’t raise the issue of a police state in a country like Australia.’ Yes, you can, if the powers given to the police are equivalent to those powers which are characteristic of tyrannies or of police states.
I have said here before in this place that I am very much marked by my past. I do not stand here as a novice in these matters. I know what banning and detention without trial is. I know what house arrest is. I know what it is like to live in tyrannies and to talk to people who have gone through the effects of tyrannies. Those tyrannies are not tyrannies because the majority of police in those countries are bad people, but because the minority abuse things and secret police turn into political police, because political power is exercised wrongly through what should effectively be a protective and defensive body.
I am a very strong supporter of good strong laws which enable us to stamp on terrorism in this country or any other, but I am also a very strong defender of the proper protections that should be there against the abuse of power, against the innocent being locked up for days at a time, against turning a blind eye to torture or standover tactics, against the judiciary not being brought into play to watch over these matters. I am as aware as anybody else that there are a number of politicians or judges or policemen or people of any nature who are likely to be less than heroic in their ethics or values. I am as aware as anybody else that standing behind every dictator and tyrant in the world have been rank after rank of judges and lawyers. I do not put great faith in a judge or a lawyer being an automatic protection, but, when you set the judiciary and the legal system on one side and you have the police on the other, then you have the proper checks and balances. What we are in danger of doing in these debates, in defending our country from this current threat, is overturning the great wisdom and values and decency of Mr Menzies and Mr Curtin and people who, out of the Second World War, knew that great tyranny means you must defend the very basics of liberal democracy.
I am taking the opportunity today to express my concern about the underlying problem with what has been put before us. The problem for us all—the crossbench, both sides of the house, and the public—is that we all want terrorism dealt with, but the people look to us to at the same time safeguard their general rights and protections, and underpinning all this antiterror legislation is a march against our liberties, which will mean that innocent people will be in danger.
Thank goodness there are great members of the Liberal Party, great members of the Labor Party and members of the crossbenches who are prepared to work to try and ameliorate the worst effects of what is being proposed. Thank goodness the Senate will now have a period of review and reflection. I know people throughout all the houses, and they are fine people, but for goodness sake they must not just march into line. They must not just submit to group-think. They must not become forelock-tuggers. They must defend what is important to this country and to our democracy. They must prevent the Terry Lewises of the world being given the power to issue warrants to allow superintendents below them to conduct search and seizure actions. They must prevent a situation such as there is in New South Wales, where a policeman who acts wrongly cannot be brought up before his peers for proper judgment, simply because issues of terror are involved. They must prevent people being detained without trial. They must allow for public monitors and for proper videoing and recording of all interviews. They must permit visits during the detention period. They must allow immediate family members and legal representatives to be advised of what has happened, because if that does not happen it is the innocent who will be affected.
This is why most parliamentarians oppose the death penalty. Many more parliamentarians support the death penalty in their hearts than will vote for it, because they know that about a third of all people who ever get the electric chair were not guilty in the first place. Mistakes happen. You cannot take the idiot factor out of the system and you cannot take the malicious out of the system, so you have got to have the proper checks and balances and the proper safeguards. The purpose of my remarks today is to encourage those who can hear these words and who might be affected by these words to allow the intent of the terror legislation, which is to prevent and to minimise terror, to go through but to retain within the legislation the protections and safeguards which are absolutely essential in what has been a great and liberal country.
What he said.
Thanks for posting this Dave.
I'm sure people tailgating on the highway have claimed far more lives than terrorism is likely to in Australia. I'd like these same summary powers extended to trucks who sit too close behind me on the way to work. I know it would make me feel better to know that it was only a matter of time before the police forced them off the road and detained them indefinitely without trial, or shot them when they were already in custody...
I guess that would be insanely disproportionate, only contemplated by an irresponsible nitwit with no respect for democratic values. Like, er, this whole piece of legislation...
Actually, you know, I'd probably get behind "anti-terror-driving" laws in a heartbeat; I'm wholly inclined to fascism when it comes to irresponsible use of motor vehicles. I actually cheer when I see the police have pulled over some prat for talking on their mobile phone while driving.
But hideous as this legislation appears to be, what is far worse is the process by which it's being enacted into law.
Let's not even get into the implications of "sedition" laws, which could in theory make comments like these (and virtually everything else I say of a political nature) a criminal offense.
It's not the legislation that matters - It's how it's used. From what I can tell, it is being used primarily to distract from the IR legislation. In that regard, it is extremely good for Australia that the IR legislation is being sneaked through, so I'm all for this distraction as well!
Senate recalled to consider amendments to the People Tailgating on "a" Highway bill. Non-seditious film at eleven.
Anyway, I've asked some fish, and we agree with Marco Poloshirt: legislation doesn't oppress people, people oppress people. (Although one fish did mumble something about legislation giving people a legal framework within which to oppress...)
Marco makes my point for me - the deeply suspect legitimacy of the process strongly suggests the likely level of restraint and forethought which will be applied to the laws' use.
Also, he's right about this all being about smokescreens and diversions. Of course, not being a small business employer, I completely disagree with his views on the IR laws, but he knows that already.
To get back to my ranty point, my objections are more to do with the contempt (and the worrying conceit that this has all happened before, and does not traditionally end in peace, love and understanding).
Just want to say that I am not actually saying that the IR changes are good for me as a small business employer. The extra competition from nimbler, smaller and "start from scratch more flexible" small businesses that this new IR legislation may create could actually put us out of business - but it is a small price to pay for the good of the country.
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