Bail Amendment (Terrorism) Bill
The Hon. JOHN HATZISTERGOS (Minister for Justice, and Minister Assisting the Premier on Citizenship) [5.52 p.m.]: I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
The Government is pleased to introduce the BAIL AMENDMENT (TERRORISM) BILL 2004.
The threat of terrorism is a modern phenomena that governments everywhere must constantly monitor and address to ensure that all possible measures are taken to protect the community.
In 2002 Australian States and Territories including NSW referred power to the Commonwealth for terrorist matters, and as a result the Commonwealth enacted broad ranging terrorist offences in the Commonwealth Criminal Code Act 1995. These offences deal with every aspect of terrorist activity, including planning, training, membership, financing and organisation.
When persons are charged in NSW with these Commonwealth terrorist offences it is the NSW Bail Act 1978 that is applied in any bail determinations.
On 13 May 2004 the Government announced a whole range of counter-terrorist measures including the amendment of the Bail Act 1978 to create a presumption against bail for persons charged with Commonwealth terrorist offences.
This bill delivers the first stage of the counter-terrorism package and inserts into s. 8A of the Bail Act all the offences created under Divisions 101,102 and 103 of the Criminal Code of the Commonwealth. Section 8A currently relates to the most serious of Commonwealth and State drug offences carrying high penalties of 20 years imprisonment to life imprisonment.
The Act will commence on assent and the presumption against bail will relate not only to any person charged with a terrorist offence after commencement but also to any review of bail under Part 6 of the Bail Act.
I commend the bill to the House.
The Hon. GREG PEARCE [5.52 p.m.]: The Opposition supports the Bail Amendment (Terrorism) Bill, which is very important though somewhat overdue legislation. The bill amends the Bail Act to remove the presumption in favour of bail for certain offences, and provides that bail is not to be granted in respect of those offences unless the accused person satisfies the officer or court hearing the bail application that bail should not be refused. The amendments relate particularly to offences under the Commonwealth Criminal Code and, in particular, offences which are known as terrorist acts, involvement with terrorist organisations and other related terrorist activity. Bail is an important right that has been developed and refined over centuries to protect the accused and to reflect the presumption of innocence, which is so fundamental to our legal system. It should not be tampered with except in the most serious circumstances.
Administration of the criminal justice system developed over time and among its safeguards are independent prosecutors, tough protocols and scrutiny of police and investigators. In the current circumstances in which we find ourselves, however, bail should not be an automatic presumption by people who are on charges of terrorist-type activities. It is almost three years since the terrorist attack on New York City, two years since the Bali bombings and several months since the Madrid train bombings. It does not take much for most of us to understand that we are living in very difficult times and that it is necessary to take steps to address those issues.
The Government has been studying these changes for some time. It is a pity that this legislation has to be rushed through as a result of the media coverage of the case of Bilal Khazal, who has just been charged with terrorist offences under division 101 of the Commonwealth Criminal Code. It is clear that the gentleman concerned has been charged with compiling false passports and with other overseas matters, and there is a probability or likelihood that he will not appear at trial and will abscond. It is therefore something of a mystery to us all that he was given bail. It will not be the case in the future. The Opposition supports the Government on this bill.
Ms LEE RHIANNON [5.55 p.m.]: The Bail Amendment (Terrorism) Bill is unnecessary. We are debating this bill because the Australian Labor Party is running scared that it will be left behind as the Coalition pushes ahead with its scare-tactic agenda to win the next election. This bill has been brought forward in great haste. We are told that the bill is urgently needed. The current political atmosphere, courtesy of Premier Carr and Prime Minister Howard, suggests that terrorists are in our midst, that our laws are weak, that we should be frightened and worried, and that we need a strong government with tough laws to protect us. Let us look at the case that the Labor Government argues justifies the change to the Bail Act in the legislation before the House.
Media reports suggest that ASIO had known about Bilal Khazal for a decade. Honourable members should consider the timing of the move against a Qantas baggage handler. Why now? Media reports say that Khazal had been writing fundamentalist Muslim literature on the Internet for at least six years. ASIO has questioned him over different matters for a decade since 1994. The AM program revealed that it has seen intelligence documents that show that on 13 February 1997 Mr Khazal published an article on line saying the Koran supports Muslims who use explosives to kill themselves and others. Six days later, ASIO visited Mr Khazal and questioned him about the article. AM understands the article was later withdrawn from a local web site. ASIO has known about that since 1997 but all of a sudden this bill is being rushed through. Waleed Kadous, a spokesman for the Australian Muslim Civil Rights Advocacy Network, commented on this case as follows:
I find it quite curious, the timing, that it's happened just as this other business with the Abu Ghraib prison has just been finishing. It's just a particularly odd time to arrest him, given that ASIO have been following this particular person for 10 years.
Mr Kadous was at pains to say that he in no way identifies with the work or comments of Mr Khazal but, like many Australians, he is very committed to freedom of speech and to upholding laws. Mr Khazal was charged with making documents likely to facilitate terrorism, a charge that he denies. This bill is a scam, it is a con, it is a trick and, most importantly, it is an electoral ploy.
The Hon. John Della Bosca: What was in the documents?
Ms LEE RHIANNON: I think quite serious and destructive things were in the documents, but there is still freedom of speech. That is not a reason to rush this bill through the House and deny people their long-fought for rights. The Labor Government believes it has to play catch-up with the Coalition on terrorism. What did it do? The Government staged mock terrorism operations, had key government leaders making earnest announcements about international and local security, and introduced tough so-called terrorist laws. But the reality is that in New South Wales, with the swag of law and order legislation that has been passed during the past nine years of this Labor Government, judicial officers have massive powers.
Similarly, at a Federal level, a raft of so-called anti-terrorist laws are in place. Even with the excessive nature of these laws, we still do not live in a police state. All individuals have certain legal rights. Now our human rights are being steadily eroded because of the actions of major parties. The Greens oppose this bill because, first, human rights should not be reduced to suit a political agenda and, second, judicial officers already have power to deny bail in many circumstances. The right to access bail has been steadily eroded by the New South Wales Government, to such a degree that the population of this State's gaols is bursting. I make that comment because judges' discretion to grant bail has been wound back by laws passed through this Parliament. This trend goes against our obligations under international law.
The bail bill before the House tonight, if passed, will breach the United Nations International Covenant on Civil and Political Rights. It will breach laws that protect the right to free speech. The Government's proposed changes to the Bail Act, which provided that people charged with terrorism-related activities cannot get bail, undermine the independence of the judiciary. Australia is a signatory to the United Nations International Covenant on Civil and Political Rights. If the New South Wales Parliament passes these proposed changes, Australia will once again be in the international spotlight for attacking human rights. It has traditionally been, and should remain, the responsibility of the judiciary to decide whether a person is a threat to society or not.
The Hon. Jon Jenkins: Wrong!
Ms LEE RHIANNON: It is not wrong. The honourable member is wrong. The powers of the judiciary are being curtailed. If the government of the day is allowed to interfere in this process, we will have court decisions that are driven by the tabloids, instead of what is fair and just. I draw the attention of the House to the relevant international laws that cover bail. Article 9 of the United Nations International Covenant on Civil and Political Rights states in paragraph 3:
Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
The Hon. John Hatzistergos: You did not read that carefully enough. Yes, generally.
Ms LEE RHIANNON: I acknowledge the interjection. I suggest the Minister listen to this.
The Hon. John Hatzistergos: Getting a lecture from you on law is always enlightening!
Ms LEE RHIANNON: I note the patronising comment of the Minister.
The Hon. John Della Bosca: You would not be a friend of hers, would you?
Ms LEE RHIANNON: And I acknowledge the comment of the Special Minister.
The Hon. John Hatzistergos: Do they have bail in the Soviet Union?
Ms LEE RHIANNON: Come on! Can't you make a new joke? You are really hard up for something to say.
The Hon. John Hatzistergos: I thought they had an instant show trial!
Ms LEE RHIANNON: Come on!
The DEPUTY-PRESIDENT (The Hon. Tony Burke): Order! Ms Lee Rhiannon has the call.
Ms LEE RHIANNON: Thus there is what can be a called a general rule in favour of bail. The Human Rights Committee, that is, the committee established by the treaty to aid interpretation and monitor implementation of the treaty, in its comment on this article, has interpreted this to mean—I urge the Minister to listen to this—that pre-trial detention should be an exception and as short as possible. I repeat, for the benefit of the Minister: pre-trial detention should be an exception and as short as possible. The United Nations International Covenant on Civil and Political Rights includes the following paragraph 5 in article 9:
Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
That opens up the interesting possibility of compensation claims resulting from the atrocious laws that are now being rushed through this Parliament. Then there is the right to freedom of speech. I have received legal advice which suggests that the bill before the House, if passed into law, would be ruled invalid if a case was taken to the High Court. If the Greens have that information, I would be fairly confident that the Government has the same information. So why is the Government pushing ahead with this bill? The Attorney General should be ashamed. He does not deserve the job of the leading lawmaker in this State if he is willing to rush through a bill that will remove hard-won and fundamental rights with respect to bail and freedom of speech.
The Attorney General, Mr Debus, has told us that the new laws create a presumption against bail for people charged with collecting or making documents likely to incite terrorism. So far as I know, Mr Debus has not had the courage to detail how much damage this bill, when passed, will do to our hard-won human rights. Surely that should also be part of his responsibility as Attorney General. In these debates I often find the Greens' position is distorted, so I would like again to put our position on the record. The Greens support measures aimed at bringing to justice those responsible for acts of terrorism. Australians share certain values, and one of those values is a commitment to an open, free and democratic society. No matter what terrorist acts may occur, we must never abandon that value. As political leaders, we are entrusted with the protection of our open, free and democratic values. We must never allow them to be lost. We cannot defend our democracy by dismantling our democratic structures and processes. When this bill goes through, one more step will have been taken towards doing just that.
We cannot protect our open, free and democratic society by making our society less open, less free and less democratic. Yet, sadly, this is the path that the Carr and Howard governments are seeking to take us down. The Greens believe that this bill is unnecessary. The right to bail in New South Wales has already been seriously curtailed. Judicial officers in this State already have a wide array of powers that allow them to refuse access to bail to people who are charged. The bill, unacceptably, erodes our democratic freedoms. It runs counter to our commitment to an open, free and democratic society. We do not believe it is valid to defend democracy by dismantling and limiting our legal rights. We should defend democracy by reaffirming our democratic values, not by chipping away at them.
The Greens are also disturbed by the undemocratic way that the Carr Government is conducting itself with regard to this bill. One of the questions relevant to this debate is why the Government is rushing this legislation through. Sadly, the answer to that question is all too obvious. The Greens will support any lawful measure to bring the perpetrators of terrorism to justice, but we cannot support a bill that dramatically reduces the democratic freedoms of the people of this State without any substantial justification. The Government has failed completely to demonstrate that this proposed law is necessary. It has not presented a credible argument to justify defending democracy by reducing democratic freedoms. We do not believe that undermining the very qualities of openness, freedom and democracy, which make Australia such a special place in which to live, is the way to fight terrorism. The Greens will vote against the bill.
Reverend the Hon. FRED NILE [6.07 p.m.]: The Christian Democratic Party strongly supports the Bail Amendment (Terrorism) Bill 2004. Perhaps it could be called the Saleh Jamal bill. That person has been in the headlines in recent days. He had been charged with suspected terrorist activities and was able to get bail, and then we understand he obtained a forged passport and left Australia—in spite of being on bail for those serious terrorist charges. Bilal Khazal, who is now in prison, is alleged to have given Saleh Jamal the money in March to enable him to flee Australia while on bail for the drive-by shooting at the Lakemba police station in 1998.
Those events have brought to a head the need for this legislation. In 2002 the Australian States and Territories, including New South Wales, referred power to the Commonwealth for terrorist matters, and as a result the Commonwealth enacted broad-ranging terrorist offences in the Commonwealth Criminal Code Act 1995. Those offences deal with every aspect of terrorist activity, including planning, training, membership, financing and organisation.
When persons in New South Wales are charged under these Commonwealth terrorist offences it is the New South Wales Bail Act 1978 that is applied in any bail determinations. The Commonwealth and State laws overlap. The bill will bring our State laws into line with the new Commonwealth laws. On 13 May 2004 the Government announced a wide range of counterterrorist measures, including the amendment of the Bail Act, to create a presumption against bail for persons charged with Commonwealth terrorist offences. Terrorists are not normal criminals. They are ruthless people who operate within networks. If they can get bail they will be out of Australia in a flash. It is alleged that Saleh Jamal, who jumped bail and fled to Lebanon, planned terrorist acts when he was in Lebanon.
Saleh Jamal has been arrested by the Lebanese government, which regards him as a major terrorist threat in that country. When one considers the background of Lebanon, it must regard his activities in that country as serious to take such action. We cannot afford to have lax bail laws that treat terrorists in the same way as that in which we would treat individuals in Australia who are charged with serious criminal offences that do not involve terrorism. Terrorists lose some of their civil rights by virtue of their inhumane activity. Terrorists blew up a McDonald's restaurant that was full of families and children because it represents the American culture. Ruthless people lose some of their civil rights compared to the rest of the people in our society.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [6.11 p.m.]: On 3 December 2002 I said:
The Democrats do not support the Terrorism (Commonwealth Powers) Bill. The Federal Government has said that we need education on how to recognise the terrorists. 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 benefit to our country. This is but another example.
Since that time, 18 months ago, we have gone into Iraq and now we are passing more laws against terrorism. We have had a foolish foreign policy and now we wait, frightened, looking at our position as top of the pops of terror targets, wondering when we will be attacked. I will say it now because I will not be able to say it when the attack comes: John Howard's foolish foreign policy has put us in this situation and we are vulnerable to terrorism because of our belligerent acts. We are spending a fortune on security guards. We are trashing our civil rights because we have foolishly bought ourselves enemies. The bill is part of our response.
Today's Australian Financial Review has an excellent cartoon of John Howard in the middle of a maze. Three corners of the maze have no pathway through to John Howard. One is the "Defence Department", another is the "Department of Immigration" and the other is the "Attorney General". The fourth corner has a pathway straight through the maze to "Alan Jones". John Howard is amenable to talkback radio, but he cannot hear messages from his own departments, intelligence that he needs to know. Presumably, the cartoon refers to the Tampa and the children overboard debacle. Now he does not know what is happening in relation to the torture of prisoners in Iraq. He seems to adopt an insular, yet populist, approach. But here comes Bob Carr! The editorial in this morning's Daily Telegraph called for no bail to be given to Bilal Khazal. In the morning a bill was introduced into the lower House and this afternoon it is in the upper House—fast legislation.
Last week a medical student called Izhar ul-Haque was granted bail by the Supreme Court. On 28 May the Sydney Morning Herald reported that Justice Peter Hidden had granted the 21-year-odd medical student bail on $200,000 surety. He was taken into custody on 15 April and charged with training with the banned terrorist organisation Lashkar-e-Taiba in Pakistan last June. Justice Hidden said that the Crown did not allege that ul-Haque was a danger to the Australian community. He acknowledged that he had no prior offences in this country, despite growing up in Pakistan. Justice Hidden said that it is important to note that it is not part of the Crown case that this young man poses any threat to Australian society. His family is in this country. He has undertaken study in this country.
He had to surrender his passport, report to Blacktown police three times a week and reside with his parents in Glenwood in Sydney's west. Following his arrest on 15 April he was reputed to have been kept in solitary confinement in Goulburn gaol until 27 May. On the steps of the court I said I thought it was bad that he was imprisoned in solitary confinement because it was not part of the Crown case that he was a danger to Australia. What on earth was he doing in gaol? I got an email from a contact who said that his parents would like to thank me, but he was too traumatised to do so himself. That is not a good situation, given that he is said to be a well-adjusted and popular medical student who is obviously very intelligent.
This man had not been to court to ask for bail; that is how trigger happy Australia has become with people's civil rights. It is worrying that we are in this situation because of our foolish foreign policy. It is true that an alleged terrorist skipped bail in this country and it is true that another was given bail. But it is worrying that we have a knee-jerk reaction every time courts make a decision that people find difficult to understand. In this instance it is the tightening up of bail conditions and our civil rights. The separation of powers seems quite divided. I believe that this is part of the same slippery slope. If a terrorism attack is launched on Australia, everyone will be upset and angry that people have been killed. I will share their reaction.
But if we had not put ourselves in this position by adopting a foolish foreign policy none of these measures would be necessary. It is time for people to take a stronger line on peace, against Australia's overseas adventures, and against the American foreign policy, which seems so ill-informed. Once you set out on this slippery path of bombing people to send them a message, supposedly to find weapons of mass destruction or to overthrow a dictator, you might replace a secular regime with a fundamentalist one. If you achieve democracy, what do you do then? You find yourself mired in a Vietnam-like situation. The occupying force uses weapons that local elements cannot respond to, and they respond with weapons that are difficult for us to respond to. I refer to suicide bombers and terrorism.
The actions taken by Australia and the United States are not categorised as terrorism, but effectively we engage in a type of war to which people we classify as terrorists do not have the resources to respond, and they attack us by using weapons to which we have great difficulty responding. The definition of torture is to deprive people who are willing to die for their cause of the opportunity to do so. It is one thing for people to die heroically by pulling a pin and detonating a bomb, but it is quite another to endure pain from torture for some time without telling what they know. One of the significant difficulties with engaging in war and eliciting a terrorism response is that it creates a temptation to use torture with the intention of ensuring that people do not use weapons that are available to them against those administering the torture.
In trying to negotiate the slippery slope of a war that Australia should not have been implicated in, we have to try to build up security against retaliation, and part of that response has involved the use of torture, the concealment of torture from the Australian people, and the progressive abuse of civil rights. As many people who are involved in the criminal jurisdiction know, crimes are committed by people who have been granted bail. If someone intends to commit a terrorist act and plots a course of terrorist action, clearly at this late stage in international conflict it is better not to have that person walking free, forging a passport and leaving the country. Equally, it is not advisable for them to remain in Australia to continue their planning or carrying out of terrorist acts. However, in a sense a reversal of the onus of proof is merely a way of increasing pressure on judges. It is hard to believe that a judge would grant bail to a person who is serious about committing a terrorist act. To that extent this bill may be regarded as redundant. Its justification is to prevent an alleged terrorist from engaging in terrorist activities.
Newspapers display little photographs of people suspected of being terrorists and invite readers to make a judgment based on a small caption of two or three words beneath the photographs, thus provoking a visceral reaction. People begin to think that all terrorist suspects should be locked up. That is pure McCarthyism. While this bill may be fair in cases where one is absolutely certain about the facts, its provisions otherwise will be hard to oppose. As Australia is on the slippery slope of international conflict and military engagement, we cannot afford to cavil about trivialities. When considered in that framework, the bill is fine. However, I suggest that the framework should be changed at a national level by the Federal Government so that Australia can extricate itself from the absurd position that has led to the introduction of this bill. Even if one believes that it is appropriate or at least not unreasonable to deal with terrorists by keeping them in gaol, it is worrying that someone who, even by concession of the prosecution, is no threat to Australia has been kept in solitary confinement for five weeks without a bail hearing—that is, in the context of the weakening of the civil liberties and rights of the individual in Australia.
It is outrageous that Habib and Hicks are still being held in Guantanamo Bay. As Australian citizens, they should be brought back to Australia to face trial for any crimes they may have committed. If the reason for leaving them in Guantanamo Bay is that they have not committed any crime in Australia—which seems to be the Federal Government's position—it is absolutely outrageous. Effectively, the Federal Government is saying that we cannot bring them back to Australia because they might be innocent, or it is saying, without judicial process, that it believes they are guilty. Consequently, they will be left with the Americans, despite suggestions that they may have been tortured and that they are being left there to place them beyond the scope of normal protections afforded by the judicial system of the United States of America. As one of the weekend newspapers described it, they are being left in some sort of a black hole. There is uncertainty about whether they come within United States law or Cuban law because their enclosure is not on the United States mainland. Effectively the Federal Government is leaving Australian citizens under the control of another country, even though the validity of its jurisdiction is doubtful. Hicks and Habib have been abandoned because the Federal Government has determined the matter and has completely ousted judicial process.
It is very worrying when governments make decisions that impinge on civil liberties. This bill effectively removes the decision on granting bail from the courts and pushes the courts toward an ambit anti civil liberties position. The Federal Government has behaved appallingly in relation to Hicks and Habib, but particularly ul-Haque, who is a medical student and who was detained in Goulburn gaol. The sub judice convention prevents me from discussing the nature of ul-Haque's case but suffice it to say that his civil rights have been severely abused. That worries me, and it is negligent not to consider the broader context of legislation and government action dealing with terrorism. I urge members to consider this bill seriously. If and when a bomb goes off in Australia, there will be a lot of emotion, and I believe that the remedy will not be as simple as the authorities catching a person from an ethnic or religious group that has been vilified or who is from a country that has been attacked by Australia.
The Hon. JON JENKINS [6.26 p.m.]: I support the bill with some reservations. Clearly there are two extremes relating to terrorism. One involves the use of violence and firearms. Clearly, those charged with offences involving violence and firearms should not be granted bail. It would be ridiculous if that were not the case. However, recently the other extreme received some media attention. Someone was arrested for creating and publishing a web page that may or may not have displayed material of a terrorism nature. I do not have details of the case, but I am not sure that offences involving the publishing of material should preclude the grant of bail. It is a shame that some discretion does not inhere in bail legislation with regard to such offences that do not involve the use of weapons. Having said that, I reiterate my support for the bill.
Ms SYLVIA HALE [6.27 p.m.]: I strongly support the remarks and position of Ms Lee Rhiannon. This is a deplorable bill because it takes away the presumption of bail in cases involving terrorism. I believe that that presumption is one of the fundamental mainstays of a society that is committed to civil liberties and human rights. As indicated in the Khazal case, even writing about terrorism is now an offence. The Greens are not alone in deploring the speed with which this bill has been pushed through the Parliament. The New South Wales Law Society, the New South Wales Council for Civil Liberties, the Australian Lawyers for Human Rights and Justice Action have all expressed grave concerns about the haste with which this legislation is being rammed through the House. The Council for Civil Liberties and the Australian Lawyers for Human Rights have condemned the legislation. Both organisations are concerned about both setting a legal precedent that will deprive someone of the presumption of bail and the additional powers being given to police.
Under this bill, police will be able to simply charge a person with terrorism for almost any act and thereby deprive them of bail. Consequently, they will also be deprived of liberty and will be incarcerated before the charges against them are heard by a court. Everyone is entitled to the presumption of innocence before the law until proven guilty, and that principle should apply across the board. It should be remembered that the current system provides a discretion for magistrates or judges to set very high bail in deserving cases.
That is an appropriate approach rather than one whereby the right to bail is automatically removed. As Ms Lee Rhiannon said earlier, this bill might be unconstitutional, particularly if it is held to apply retrospectively, which is the view of the Law Council of Australia. The Hon. Dr Arthur Chesterfield-Evans referred to the case of Izhar ul-Haque, one of the first examples—and one to which we should all pay attention—of someone who was arrested and denied bail. His treatment was handed out without him having any recourse to legal advice. That 21-year-old medical student was held for six weeks in solitary confinement in a three metre by three metre cell at the maximum security prison at Grafton. If ever there was a case that would make one hesitate and say this is not the right way to go, it is the case involving Izhar ul-Haque.
It is instructive to look at what has been written about how one should deal with the perception that terrorist acts are likely to occur and how one should balance that against the need to protect human rights. In an interesting article entitled "Terror Meets Tyranny? The Interface Between Counter Terrorism And Human Rights" Alex Conte, a lecturer in law at the Canterbury University School of Law in New Zealand, made a number of significant points. He wrote:
For instance, does a bombing carried out by a rebel group, which is directed towards the destabilisation of fascist authorities (the Pol Pot Regime, for example) amount to a terrorist act or an act of "freedom fighters"? The point to make is that this is not just a cliché. To give a striking example, the United States keeps a list of the most wanted terrorists which featured, at one time … Nelson Mandela … subsequently awarded the Nobel Peace Prize.
I am reminded of the resistance movements in Europe during the Second World War and the resistance to the Indonesian occupation of East Timor. Others could refer to a number of episodes when resistance was obviously legitimate. Mr Conte then made this very salient point:
Terrorists are those who use violence against the side that is using the word.
One man's terrorism is another man's freedom fight. That thought should be borne in mind because it shows the inherently political nature of determining what is terrorism. It is a political decision. Of particular concern is the fact that the bill will be used for political purposes in the State and federally. It is one more weapon in the move to drum up law and order, and to get tough on crime and on anyone who deviates from the norm. Mr Conte continued:
At the International Bar Association Human Rights Institute Conference in 1998, two prominent judicial figures from Pakistan criticised the then existing counter-terrorist legislation as failing to counter terrorism and instead countering human rights standards.
The main concern about this sort of legislation is that it is less effective. If it is genuinely believed that someone is a threat to society, this sort of legislation is ineffective in countering such a threat. But it is far more effective, and will be used far more frequently, to chip away at and deny basic human rights—as was significantly demonstrated in the Izhar ul-Haque example. Anti-terrorist legislation is manipulated to serve ulterior motives. It comes as no surprise that it is used in China to hunt down and imprison members of the Falun Gong movement. It is also used against Muslim minorities in China's north-west. This type of legislation pretends to counter terrorism. Its essential purpose is to stifle opposition. In 1999 Kofi Annan said:
We are all determined to fight terrorism and to do our utmost to banish it from the face of the earth. But the force we use to fight it should always be proportional and focused on the actual terrorists. We cannot and must not fight them by using their own methods—by inflicting indiscriminate violence and terror on innocent civilians …
We should not use legislation as a pretext to deny and chip away at fundamental human rights. It has often been said that in times of emergency the protection of human rights becomes all the more important, in particular, of those rights from which no derogations can be made. That is an important issue. When everything is plain sailing it is easy to say that everyone respects human rights, but in quiet times there is not the same awareness of or determination to eat away at human rights. But resisting attacks on human rights is important in times of emergency. It is most important when the press beats up anti-terrorist campaigns. Generally it is most difficult to stand up for fundamental human rights and not have them removed by legislation such as this when hysteria prevails.
This morning the Hon. Dr Arthur Chesterfield-Evans, the President of the Legislative Council, the Hon. Dr Meredith Burgmann, and I were fortunate to attend a meeting in the Jubilee Room of Australian parliamentarians, lawyers and community leaders. We called on the coalition partners—that is, the United States of America, Australia and Great Britain—on the United Nations and the incoming Iraqi administration, to guarantee the safety of 3,800 Iranian resistance members, two of whom are Australian citizens, who are held at Camp Ashraf, north of Baghdad, in Iraq. The resistance movement, the People's Mojahedin Organisation of Iran, the largest and most widely supported opposition to the reign of the mullahs in Iran, came into being post 1979 with the overthrow of the Shah of Iran.
Iran is putting enormous pressure on the United States of America to have that organisation declared a terrorist organisation. Members of the British House of Commons, the majority of members of the Italian Parliament, many members of the European Parliament and many members of the American Congress have said that any attempt to describe that organisation as a terrorist organisation would be a complete distortion of history. That group of people has consistently opposed torture and rape—and what I might describe as the state-endorsed terrorism of the Iran regime—but because America is anxious to enter into trade deals with Iran it is currently considering describing that organisation as a terrorist organisation and allowing the repatriation of Iranians in Camp Ashraf from Iraq to Iran.
If that occurs, there is no question that they will be murdered, tortured and the women raped. It will be handing over thousands of people to be massacred, imprisoned and tortured. I am sure that all honourable members can see just how inappropriate and easy it is to manipulate terminology so that people with whom we disagree or who take an alternative stance can be written off and denounced as terrorists, and a government can abandon them to their fate, even though it knows full well that that will result in wholesale torture and death. It is equally important in a society where the papers and the shock jocks bandy around the term "terrorism" for us not to throw overboard every concern about civil liberties and every basic protection. It is vital to resist pressures to erode, undermine and try to dispense with protections that separate many members of this community from being incarcerated on trumped-up, ill-founded and unsupportable charges.
This bill in itself may be seen as simply a minor encroachment on civil liberties. Everybody says, "It will never apply to us." But I think we should pay some attention to the lessons of history and admit that in a free and open society dissent is able to flourish. People are being imprisoned because they write or design web sites, or they attend organisations or camps that at the time of doing so were perfectly legal. To suggest that they should be subject to imprisonment I believe makes a travesty of everything that a free and democratic society is supposed to be concerned about. This bill is deplorable. The Greens will vote against it. There is no question that there is any aspect of it that anyone with any concern for human rights or for a democratic society would find acceptable.
The Hon. PETER BREEN [6.43 p.m.]: Amending the presumption in favour of bail should not be done lightly because the precedent it sets may have far-reaching consequences, not just for the legal system but for the citizens of this State. I am particularly concerned with the retrospective aspect of the bill—which means it applies to an offence committed before the commencement of the legislation. The bill is clearly designed to extend the presumption against bail, presently limited to certain drug offences, to certain terrorist acts under the Commonwealth criminal code. In particular, the bill is intended to apply to Bilal Khazal, who is alleged to have collected or made documents likely to facilitate terrorist acts. Some of those allegations include posting a book on the Internet. The offences carry a maximum penalty of 15 years gaol.
The retrospective operation of the law can be demonstrated in that case because the Premier announced earlier today that he believed the Commonwealth Director of Public Prosecutions should appeal the bail decision. I understand that only half an hour ago the Commonwealth Director of Public Prosecutions announced that he would be appealing the bail decision. That means that, when the matter comes before the courts for reconsideration of the issues that have already been considered in this man's case, the regime under which it will be considered will be the regime described in this bill. So, in other words, Mr Khazal, who secured bail in the amount of $10,000, which was provided by an appropriate person, is currently free in the community.
By the time the Commonwealth Director of Public Prosecutions lodges the application and the new application is heard, this legislation will be in force. Mr Khazal will be denied bail because he will not be able to demonstrate to the satisfaction of the legislation the onus that he bears under this legislation, which extends the presumption against bail. On the question of retrospective laws, on 6 May the Premier noted in the context of the retrial of accused gang rapists Bilal Skaf and Mohammed Skaf that there are "constitutional difficulties" in making criminal law retrospective. Furthermore, in a letter I received from the Federal Attorney-General, Philip Ruddock, on 31 March this year, the position of the Commonwealth was also made clear on that same issue of retrospective criminal laws. The Attorney-General said:
In response to your suggestion about using retrospective laws, the Australian Government does not support retrospective criminal laws. It is fundamentally wrong to make a criminal law retrospective. This idea has been considered and firmly rejected.
Mr Ruddock's Director of Public Prosecutions is about to appeal that bail decision. I asked Mr Ruddock to make antiterrorist laws retrospective to give Australian courts jurisdiction over Mamdouh Habib and David Hicks, the Australian prisoners being held illegally at the pleasure of the American Government. It appeared to me we were ignoring Australian detainees while the British were having some success repatriating their prisoners who were incarcerated at Guantanamo Bay. It goes without saying that both Federal and State governments are prepared to compromise principles prohibiting retrospective criminal laws for their expedient tough-on-crime agendas.
This question about the retrospective application of the law is almost certain to be tested in the High Court. The reason I say that is that the law specifically applies to this prisoner. This morning it was introduced with indecent haste in the Legislative Assembly. I think it is the shortest second reading speech that I have ever seen—it runs to four paragraphs. The legislation before the upper House this afternoon presumably will be proclaimed tomorrow or the next day. That means that the law will be interpreted as applying specifically to prisoner Bilal Khazal. If that is not a repetition of the Kable case, I would be surprised.
It is worth remembering that the principles of due process in the criminal justice system, which this bill undermines, can be traced back to the origins of the common law. They should not be discarded except in the most extreme circumstances. In particular, the presumption of innocence, the right to liberty and the onus on the State to prove guilt are principles that should be reinforced by this Parliament and not abandoned for the sake of particular circumstances such as those that I have mentioned. The idea that these principles should be abandoned in favour of a system whereby we lock up a suspect and deny him or her bail without overwhelming evidence of guilt is contrary to all the traditions of the rule of law.
It is difficult once someone is incarcerated to be able to demonstrate his or her innocence. The example of Izhar ul-Haque referred to earlier by the Hon. Sylvia Hale demonstrates that principle. Mr ul-Haque has just been released after six weeks in the super maximum-security gaol. He would probably not get bail under this legislation, yet he appears to be a young man who has temporarily lost his way. He has a lot of support in the community, he is a good student and he is an intelligent man. To deny him any opportunity, which this legislation would have done, of getting out of gaol and demonstrating his innocence is an appalling breach of his rights.
Irrespective of the question of his guilt or innocence, an extended stint in the high-risk management unit would be sufficient to ruin his life. So far as we know, given our limited knowledge of and available access to the high-risk management unit, the conditions in that unit are appalling. So far as I can tell they are not unlike the conditions at the old Katingal gaol, but until we get the opportunity to inspect the unit we will not be able to say with any degree of certainty.
Perhaps of greater concern than the cases of Bilal Khazal and Izhar ul-Haque is that of accused terrorist Saleh Jamal, who skipped bail in Sydney only to be arrested in Lebanon last weekend for alleged links with Al Qaeda. Regrettably, Saleh Jamal had already spent two years in gaol awaiting trial for his part in the drive-by shooting at Lakemba police station. Denying bail is a drastic punishment if a prisoner must wait years for a trial. Many people could not cope with punishment of that magnitude. I emphasise that point in relation to Saleh Jamal. He does not appear to be the most delightful person on the planet. But we must remember that he was in gaol for two years awaiting trial before he was finally granted bail.
When there is a backlog of people in custody awaiting trial the judiciary inevitably becomes frustrated. Judges recognise the injustice that is being perpetrated and people are granted bail when they perhaps should not be—and this case might be an example of that. I sympathised with the judge who said, "Even though he doesn't appear to have a very good record and even though the charges are serious, it is a basic contravention of human rights to keep somebody incarcerated for two years awaiting trial." A judge could be tempted to grant bail in such circumstances when he or she might not otherwise do so.
This legislation is harsh and reverses the onus of proof in respect of the presumption of bail. There are those in the police service who will understand the difficulties that could be created when people are incarcerated, there are questions about their guilt or innocence and there is insufficient evidence to convict them—people are often sent to gaol until the appropriate evidence comes to hand. So people will be released without charge because of the overwhelming injustice of this legislation. On that basis alone I do not support it. I think there are other ways of dealing with terrorism. It is a different matter when direct threats are made against identifiable people but general statements that are made in many cases on the Internet or within a circle of friends should be treated differently. I recognise that the bill has support across the board but I believe it should not be supported. I am grateful for this opportunity to state my case.
Mr IAN COHEN [6.52 p.m.]: The Bail Amendment (Terrorism) Bill is extremely draconian legislation. I thank previous speakers in this debate, who elucidated the various issues with clarity. The Hon. Peter Breen, who has wide legal experience, stated his case extremely effectively. I am reminded of the famous George Bernard Shaw quote, "We learn from history that man has learned nothing from history." This bill is a classic illustration of that assertion. It is McCarthyist legislation that is based on fear and hate. It twists the basic tenets that are supposed to be established in a civilised democratic society: the presumption of innocence and the independence of the judiciary. Members of the judiciary have the training to decide in every circumstance whether bail should be granted.
The Hon. Peter Breen explained clearly that the system sometimes fails because of the backlog of cases and the frustration experienced by the judiciary. A person absconded recently while on bail after spending some years in gaol awaiting trail. That is just one example, but often the worst examples make the best cases when dealing with what is fair in law. This legislation clearly breaches several United Nations covenants. The Greens believe we must be extremely careful with any legislation that moves us closer to becoming a police state. Previous speakers in the debate commented on the speed with which the bill has passed through Parliament, the lack of thought given to the bill, the knee-jerk reactions and its timing. In an ABC interview reporter Michael Vincent spoke to a number of prominent members of the Muslim community. Waleed Kadous said:
I find it quite curious, the timing, that it's happened just as this other business with the Abu Ghraib prison has just been finishing. It's just a particularly odd time to arrest him, given that ASIO has been following this particular person—
that is, Bilal Khazal—
for ten years.
Certainly no-one supports that individual, who has been the focus of ASIO attention for a number of years. We are in the run-up to a Federal election and both major political parties are on a spurious and cheap trajectory of upping the ante on law and order. That is reflected in the conservatism in this House. Many members will jump to their feet and claim that this bill is the way to go. At least the Minister for Justice has returned to the Chamber. The Minister has no real regard for the parliamentary process. He left the Chamber during the debate then wandered in again to make some snide remarks to Ms Lee Rhiannon about Stalinism.
The Hon. John Hatzistergos: We can't repeat what you say about her.
Mr IAN COHEN: The Minister might like to quote what he presumes I say about anyone in the House. I would like to have that debate. The Minister made a superficial observation regarding the Soviet Union. Perhaps he could tell us about his Greek generals' fascist connections. Perhaps that would be worth discussing in the House. Perhaps the Minister would like to go over his background of lack of democracy—
The Hon. John Hatzistergos: Point of order: I find those remarks particularly offensive and I ask that they be withdrawn. I have no such connections whatsoever. Apart from the fact that my parents left a country that at one stage was under military dictatorship, I do not know what other connections the honourable member could possibly be insinuating in his remarks, which I find highly offensive. I ask him to withdraw them.
Mr IAN COHEN: To the point of order: I ask the honourable Minister to explain the difference between my remarks and his constant accusations in the House about Ms Lee Rhiannon's Stalinist connections. He has impugned her character and criticised her behaviour in the House. What is the difference?
The Hon. John Hatzistergos: Further to the point of order: I did not make the connection that the honourable member is attributing to me. I simply asked Ms Lee Rhiannon a rhetorical question in the course of debate to which she chose to respond and to which she did not take any exception. She certainly did not take exception to that remark in the way that I have taken exception to the honourable member's remarks. They are totally different. I ask the honourable member to withdraw his remarks. If Ms Lee Rhiannon did take offence to anything I said I would be happy to withdraw it.
The DEPUTY-PRESIDENT (The Hon. Tony Burke): Order! I am advised that under Standing Order 91 (3) a member must not use offensive words against any member of the House. Such comments are disorderly. That is clearly the case here, given the objections that have been raised. I invite Mr Ian Cohen to withdraw his comments.
Mr IAN COHEN: I withdraw those comments. It certainly concerns me when Ministers of the Crown, such as the Hon. John Hatzistergos, take a very cavalier attitude to basic democracies, breaching United Nation covenants and looking at legislation that is being rushed through the House at a rate that does not allow for proper debate or the making of good legislation. As previous speakers have said, we have to look at the consequences of Australian foreign policy attitudes in this country that are resulting in a situation that is becoming increasingly significant. On ABC radio Mr Waleed Kadous said, when referring to beliefs of people carrying out violent acts, "Yes, it does disturb me, but I still don't think that you can be arrested simply for thinking or expressing a point of view."
One would like to think that we are not moving in that direction—one in which we have such intolerance in our society and throughout our political system that we will be stamping on the basic rights of people in our community to have the presumption of innocence, to be heard before a court of law, and to be granted bail rather than have it automatically refused. It certainly is a piece of McCarthyist legislation that is sending New South Wales down the wrong track, kowtowing in this case to a very conservative Federal Government. I strongly oppose this legislation and thank those honourable members who have stated their belief in opposition to it.
The Hon. JOHN HATZISTERGOS (Minister for Justice, and Minister Assisting the Premier on Citizenship) [5.51 p.m.], in reply: Because of the hour I will confine my remarks simply to rebut some ill-conceived comments in this debate. A number of speakers who have opposed this legislation, particularly the Greens and some others, seem to take the view that this legislation is draconian because under these provisions people will be denied bail. It is important to read the provisions. In our criminal law there are presumptions in favour of bail, presumptions against bail, and no presumption. Depending upon the category of offence, the Bail Act circumscribes how those presumptions operate in relation to individual offences. In other words, in more severe offences the presumption is more against the accused.
These provisions do not state that persons who are accused of these very serious offences will never get bail. However, they do state that there will be a presumption against bail. They require the accused person to allow the court to exercise its discretion to determine whether bail should be granted. It is wrong to suggest that any person—notwithstanding the circumstances of the case, their antecedents or whatever—will be denied bail simply because they are charged with an offence. They will have to make out their case and rebut the presumption which the Bail Act sets up. This is not unusual. There is a whole series of offences—for example, Commonwealth and State drug offences; murder, except in exceptional circumstances; repeat serious personal violence offences, except in exceptional circumstances; serious firearms offences from 1 July 2004; and repeat property offences from 1 July 2004—where there is a presumption against bail. It is a presumption that needs to be rebutted. The argument needs to be put.
Obviously, if the case is weak and tenuous the court will take that into consideration in determining whether it is appropriate to grant bail in particular circumstances. The remarks made by the Greens, and to some extent also by the Hon. Peter Breen, overstate the situation. I also want to clarify the retrospectivity issue. The amendments, in fact, are not restrospective. Bail law is a matter of procedure and anyone who is familiar with the subject matter knows that every time a person comes before the court in relation to a criminal offence the issue of bail is reviewed. It is an ongoing process. Bail can be granted on one occasion and refused on another, depending on how the circumstances leading up to the case change.
There is a balance to be struck in any bail decision between the seriousness of the offence, obviously the presumption of innocence, and the safety of the community, which it is important to take into account. In relation to particularly serious offences it is not unreasonable to require an accused person to make out their case. Ms Lee Rhiannon made a series of remarks about breaching the International Covenant on Civil and Political Rights and other international treaties, which were totally misconceived.
The Hon. Peter Breen: It is true. They do breach the covenants.
The Hon. JOHN HATZISTERGOS: If one argues that logic it means everyone charged with a criminal offence should be granted bail. On the issue of bail the interests of the public must be weighed against the interests of the accused. We have discretions and presumptions so that those matters can be properly assessed by the courts and determinations made.
The Hon. Peter Breen: Presumption in favour of bail is in the International Covenant on Civil and Political Rights. Ms Lee Rhiannon is right about that.
The Hon. JOHN HATZISTERGOS: She referred to a particular treaty and a particular provision which set out what the general position ought to be. The general position can be displaced in particular circumstances, and particular circumstances like serious terrorist offences do require a different consideration from what would otherwise generally be the position. The Hon. Peter Breen knows something about criminal law and has been involved in the criminal process for some time. He knows that a large number of offences, particularly the lower range of offences, such as drink-driving and matters of that nature, do have presumptions in favour of bail and it is appropriate that that be the case. One has to bear in mind in any circumstance, particularly a case like this, that a person who is convicted of an offence of this nature will almost certainly go to prison. Therefore, that factor has to be taken into account in assessing any bail decision, particularly if it is going to be a lengthy period in prison.
The Hon. Peter Breen: But it is also retrospective. The bill clearly states "extends to a grant of bail to a person in respect of an offence committed before the commencement of" the Act.
The Hon. JOHN HATZISTERGOS: That is right, because bail is an ongoing matter. Every time a person comes before the court the circumstances can change. For example, a person who is refused bail one day can subsequently be granted bail. It is constantly reviewed. Bail is a procedural matter: it is not a substantive matter of law.
The Hon. Peter Breen: Normally legislation does not apply to offences that occur before the legislation is enacted.
The Hon. JOHN HATZISTERGOS: Every bail decision is made at a point in time and it is reviewed on subsequent occasions. It does not mean that all the people who are in gaol are hauled before the courts to have their bail reviewed under these provisions, but it does mean that on the next occasion they come before the courts for bail they will be looked at under this legislation.
The Hon. Peter Breen: But they should not be; they should be looked at under the old legislation.
The Hon. JOHN HATZISTERGOS: I have indicated the position so far as that is concerned. The Hon. Greg Pearce said that the legislation was long overdue. It is important to remember that this Parliament referred powers in relation to terrorist offences to the Commonwealth.
The Hon. Greg Pearce: Not in relation to bail.
The Hon. JOHN HATZISTERGOS: Yes, but the Commonwealth at no point requested us to amend our legislation in relation to bail to set up this particular presumption. In fact, no other State has taken that initiative. This Government took up the initiative in relation to these particular offences following its ongoing reviews of these matters. In fact, we are the first State that has dealt with them in this way. We were not prompted by the Commonwealth or by other States. We had these matters constantly under review and we decided to act in this way. I think in the circumstances the response is, in fact, reasonable.
Motion agreed to.
Bill read a second time.
The Hon. JOHN HATZISTERGOS (Minister for Justice, and Minister Assisting the Premier on Citizenship) [6.15 p.m.], by leave: I move:
That this bill be now read a third time.
Question—That this bill be now read a third time—put.
The House divided.
Reverend Dr Moyes
Question resolved in the affirmative.
Motion agreed to.
Bill read a third time.