New concerns surround the government’s increased use of legislative powers to bypass the parliament and create laws that cannot be amended or overturned. The federal government has embedded special powers in new Covid-19 laws to make unilateral changes to non-pandemic-related legislation, using what are known as ‘Henry VIII clauses’ – named for the unchecked power they involve.
National security curbs get free ride through parliament
Bipartisanship is a strange creature. Amid the rancour of parliament, it is less and less often seen. On some issues, it is much missed. But on others, it is a dangerous beast: it scrubs out oversights and silences criticism; it leaves legislation uninterrogated for fear of undermining it.
So it was on the National Security Legislation Amendment Bill (No. 1), which passed the senate last week and was waved through the lower house on Wednesday. The bill is an extraordinary assault on the freedom of the press and on oversight for our spy agencies, and yet it was voted into law by unblinking bipartisanship. At times, it appeared the Labor opposition did not even know what it was voting on: a law that allows the Australian Security Intelligence Organisation and the attorney-general to deem any operation “special” and as such make reporting of it an offence that would jail journalists and w histleblowers for acting in the national interest.
Consider this exchange on Tuesday, between ABC journalist Lyndal Curtis and shadow attorney-general Mark Dreyfus.
Curtis: Are you absolutely sure if an intelligence operation was seriously bungled, if it could do damage to the country and cause embarrassment to the agency, that that could be reported without a journalist facing a criminal sanction?
Dreyfus: I can’t be absolutely certain, but what I can be certain of is that Labor is going to be monitoring how these provisions work in practice, and I’d stress again, we are talking about quite a small number of operations that are ever likely to be special intelligence operations.
Much of the reassurances about this bill come from statements rather than fine print. In the course of passing the houses, the only amendments accepted were from the Palmer United Party, and they acted only to make the legislation more harsh.
There were small but hopeful voices against the curtain of bipartisanship, but they went unanswered.
Former whistleblower independent Andrew Wilkie said the bill would turn Australia into a “police state”. He said the government had offered security agencies a blank cheque and the opposition had countersigned it. “Why is the government – with the opposition’s support – wanting to overreach like this? I can only assume the government is wanting to capitalise on and exploit the current security environment. I can only assume that the security agencies are delighted.”
Labor backbencher Melissa Parke was another welcome but minor voice. The issue she hit on was an important one, that the laws unnecessarily garnish powers that already exist: “There has not been convincing evidence of inadequacies in the existing legal framework that warrant the broad extensions of powers we see here.”
The Greens’ Adam Bandt was plain about the practicalities: “If these laws pass, our security agencies could inadvertently kill an innocent bystander and journalists would not be able to report on it.”
These laws did pass. They passed because the opposition was cowardly in the face of a real threat to national security, but one that should not see security agencies freed entirely from scrutiny.
These are the agencies of the Haneef Affair and improper spying on Indonesia, of raided offices and the Timor gas and oil scandal. They are agencies quite able to operate inside the current legislative framework, but which would always prefer the public did not know how they operate. Sending journalists to prison for 10 years any time they report their operations goes a significant way towards that goal. This bill is a disgrace of bipartisanship and so now are these laws.
This article was first published in the print edition of The Saturday Paper on Oct 4, 2014 as "Curbs get free ride".
A free press is one you pay for. In the short term, the economic fallout from coronavirus has taken about a third of our revenue. We will survive this crisis, but we need the support of readers. Now is the time to subscribe.