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Roger Clarke **
10 November 2005
© Xamax Consultancy Pty Ltd, 2005
Available under an AEShareNet licence or a Creative Commons licence.
This document is at http://www.rogerclarke.com/DV/SubSenATBill05.html
I am a consultant with 35 years' experience in industry, government and academe. I am a Visiting Professor at leading universities in Australia and overseas. I have been active in relation to public interest matters for 30 years, in various roles. Details of my background and affiliations are at the end of this document.
I have followed successive proposals for changes to the law since 2002. Each has been justified on the basis of being an counter-terrorism measure. I have also undertaken analysis myself, and considered analyses conducted by others. The comments in this document are my own, and do not necessarily represent the opinions of any of the organisations with which I am affiliated.
The Bill proposes major changes to the balance between the powers of national security and law enforcement agencies, on the one hand, and the rights of Australian residents, on the other.
The extent of the changes is so extraordinary that very strong evidence would need to be provided to justify the need for each change, and to demonstrate how each change would enable the achievement of the claimed outcomes.
No such evidence has been provided. All that is available is vague assertions that the changes are counter-terrorism measures, and that they would be appreciated by the agencies concerned.
In the absence of evidence that is very clear and very strong, the Australian public will reject these proposals.
Senators must do likewise. The future will judge very harshly elected representatives who failed to demand evidence, and failed to protect the population against authoritarian measures befitting a police state.
The Bill is 140 pages long. It has many parts, which have unclear relationships, variously internally, with other statutes, and with the common law. It is an excruciating read, as a result of its scope, its presentation and its inherent complexity. The 'explanatory memorandum' is, like most such documents, little better than a repetition of the content of the Bill.
Crucially, we have not been provided with the affected statutes as they will appear should the Bill be passed. Modern technology makes such consolidated draft legislation readily deliverable. The provision of such documents would enable each of us to achieve an understanding of the effect on the existing text in the affected statutes. There would still be considerable effort necessary, in order to interpret the meaning of the changes, and think through their consequences; but the new text would be a valuable starting-point. The failure to apply such technology is very disappointing.
Further, there have been active attempts to prevent the Bill from reaching the public in sufficient time to enable analysis. And the time made available to consider it has been contrived to be very short. Together, these factors have had the effect of diffusing and delaying the work of analysts and commentators.
The intentions of the Bill are of concern enough. But, as a result of the barriers to understanding that have been created, it must also be assumed that there are many further ill-consequences in the Bill that have not yet come to light.
The Attorney-General's statements in the Second Reading speech declared these purposes:
Scouring the Bill, the explanatory memorandum, the Second Reading speech, the media releases, and the interviews given by the Bill's proponents, yields no explanation as to:
As various commentators have put it, we have been provided with variants of the mantra 'Trust us'. This is a dangerous enough prescription for the government of a free nation under any circumstances. It is entirely untenable given the nature of the changes proposed.
The obligations, prohibitions and restrictions that could be imposed on individuals if this Bill were passed are extraordinarily intrusive. And yet they are not subject to even the most basic controls.
Further, amidst the fog of 80 pages of text, it appears that they are not intended for individuals convicted of serious offences, nor even for those charged with serious offences. It appears that the powers are to be available even if there are no reasonable grounds for suspicion that the person that they're applied to has committed a serious offence.
It is repugnant to a free society for any agency to have the power to make determinations about individuals, and take actions seriously detrimental to the freedom of individuals, without every one of these basic controls in place:
There is general public support for ensuring that words and deeds that actively vilify individuals and groups, or that actively encourage violence, are clearly defined to be criminal acts. But there is a strong expectation that existing laws already achieve that end. To suggest otherwise is to accuse the Parliament of having taken insufficient care in its consideration of previous Bills that have come before it.
There is no evidence that there is any need for the amendments to the extent that they relate to terrorism. There is, however, a strong indication that the Government is seeking to use terrorism as a smokescreen for measures that have much broader applicability.
As I understand the Bill, 'seditious intention' includes "an intention to urge disaffection against (i) the Constitution, (ii) the Government of the Commonwealth, or (iii) either House of the Parliament".
To describe Question Time in the House of Representatives as a bear-pit, and less disciplined than the worst school debating tournament, and to propose reformation in order to recover it as a vital element of the democratic process, could easily be interpreted as 'urging disaffection'; let alone calling into question the morality, logic or motivations of an MP or Senator, or a Minister, or perhaps even a government employee.
Further, 'seditious intention' includes "an intention to urge another person to attempt, otherwise than by lawful means, to procure a change to any matter established by law in the Commonwealth".
But "otherwise than by lawful means" outlaws civil disobedience, and moves demonstrations that lack approval into the realms of serious criminal law, punishable by a lengthy period in gaol.
It would also be open to a court to convict a person for sedition for drawing to people's attention the ways in which they can avoid making personal data available to a government agency that had been demonstrated to be untrustworthy (e.g. to the ABS in the context of the new and highly invasive census regime proposed with effect from 2006).
The creation of defences is an utterly unsatisfactory attempt at balance. The Bill would provide this government, and future governments, with the means to oppress individuals and groups by means of prosecutions, and to chill behaviour because of the possibility of such prosecutions being launched. People uttering political comment, including artists and comedians, should not be forced to familiarise themselves with the intricacies of defences that they would be permitted to bring before the courts only after many months of pressure, delay and disruption of their lives, and tens of thousands of dollars of expense.
These provisions have been devised so as to extend far beyond terrorism. They have the clear potential to restrict political comment and debate. Even if it eventually transpired that the courts would not permit wide reading of the provisions, there would have been substantial chilling of speech, not least among the parts of society that already feel less free to make their voices heard.
These are provisions that a free nation would strongly criticise if they were proposed for enactment in an un-free nation. It beggars belief that such terms could be seriously considered by the Australian Parliament.
Senior lawyers started out fairly timidly with their responses to this Bill (at least judging by their public statements). As the content became clearer, however, large numbers of the most senior and responsible members of Australian society have made forthright statements about the provisions. A small selection is provided in the Appendix.
I lost a great deal of my time in 1985-87 analysing the ever-varying proposition that was the Australia Card. It gradually became apparent to the public what the then Government, strongly supported by the bureaucrats in the Health Insurance Commission and the Department of Health, actually intended to do. The popularity measure switched from 70% approval to 70% opposition; and people took to the streets.
The measures proposed in this Bill are based on even less justification, and even less appreciation of the consequences, than was the case with the Australia Card proposal.
If passed, in any form, this Bill would seriously undermine the credibility of statutes enacted by the Commonwealth Parliament. That is because public opinion would ensure that it was left on the shelf, untouched. And there it would await some seriously repressive Government, which saw the need, and grasped the opportunity, to fall back on grossly inappropriate powers granted to it by Parliamentarians who were asleep at the wheel.
It is the responsibility of elected representatives to look sceptically on all Bills that come before them. But never is that responsibility clearer or more important than when fundamental liberties are at stake, as they are with this Bill.
I have been Principal of Xamax Consultancy Pty Ltd, Canberra, since 1982. My company has performed many assignments related to eBusiness and privacy, for corporations and government agencies throughout Australia, and in New Zealand, Hong Kong and Canada.
I hold Honours and Masters degrees in Commerce from U.N.S.W., and a doctorate from the A.N.U.
I am, or have been, affiliated with the following organisations, in various capacities:
The content and infrastructure for these community service pages are provided by Roger Clarke through his consultancy company, Xamax.
From the site's beginnings in August 1994 until February 2009, the infrastructure was provided by the Australian National University. During that time, the site accumulated close to 30 million hits. It passed 50 million in early 2015.
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Created: 10 November 2005 - Last Amended: 10 November 2005 by Roger Clarke - Site Last Verified: 15 February 2009
This document is at www.rogerclarke.com/DV/SubSenCTBill05.html