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.
Brandis welshes on terror talks with Leyonhjelm
In this story
Perhaps George Brandis felt a pang of freedom envy when he met with libertarian senator David Leyonhjelm the Monday before last and offered to negotiate with him on details of national security legislation.
The offer came as a surprise to the gun enthusiast and defender of Big Tobacco and free speech, whose vote on the terror laws was not crucial, given Labor was supporting the government.
Yet the Liberal Democrat dared to hope there could be a meeting of the minds with the attorney-general, who has long identified as a defender of liberty, despite his current pursuit of expanded powers for the state.
Brandis had already capitulated that morning and agreed to explicitly prohibit torture after Leyonhjelm had gone on Sky News to deploy the “nuclear option”, threatening to withdraw all co-operation with the government if it did not respond to his concerns on that score.
“Torture is about as totemic an issue as you can get for a libertarian,” Leyonhjelm says. “We think the government has far too much power already. To give it additional power to torture people is beyond the pale.”
Brandis maintained the prohibition was not necessary, but grudgingly agreed to include it.
At a meeting in the attorney-general’s office, at 9pm that evening, on Monday, September 22, Leyonhjelm says Brandis offered to negotiate further changes, including dealing with concerns about new restrictions on press freedom.
“He asked: ‘Do you have other concerns?’ I said: ‘As a matter of fact, I do.’ And we talked about them,” Leyonhjelm tells The Saturday Paper. “He said: ‘Well, perhaps we can negotiate some compromises.’ ”
According to Leyonhjelm’s account, Brandis said there could be no negotiation if the senator took an absolutist view against any restrictions on reporting of a new type of covert operation, known as a special intelligence operation (SIO).
Such operations extend to the Australian Security Intelligence Organisation (ASIO) agents protections already available to the Australian Federal Police, allowing them to break the law, providing it does not involve death or serious injury, torture, sexual offences or significant damage to property.
Leyonhjelm says he conceded there could be circumstances where restrictions on reporting of SIOs were valid, but that section 35P of the proposed legislation went too far.
This section exposes anyone who recklessly discloses details of an SIO to penalties of up to five years’ jail. If the disclosure endangers agents or disrupts the operation, the maximum penalty rises to 10 years. Journalists are obvious targets, but it could equally net others who reveal details online.
On that Monday night, Leyonhjelm believed there was a prospect Brandis might work with him on further safeguards. But that prospect proved illusory.
The next morning, Leyonhjelm sent Brandis amendments he thought should be acceptable to the government, including allowing a defence that a journalist was exposing misconduct or corruption. Brandis never got back to him, he says.
The attorney-general introduced the legislation to the senate the following day. When Leyonhjelm moved his series of amendments, Brandis rejected them.
He argued they were not needed and that there were already safeguards for whistleblowers.
“If it was disingenuous, it was bad faith,” says Leyonhjelm. “You can’t offer to negotiate and then rule everything out. Maybe he had a soft-hearted moment when he saw me and went back to normal afterwards.”
A spokesman for Brandis disputes his claims, saying: “The attorney-general’s office was in regular contact with Senator Leyonhjelm’s office and, prior to the debate, explained in detail why the senator’s proposed amendments could not be supported by the government.”
The National Security Legislation Amendment Bill (No. 1) passed the senate last week, supported by Labor, the Coalition, Ricky Muir and the Palmer United Party. The PUP jacked up penalties for exposing the identity of an intelligence officer. Leyonhjelm describes the PUP manoeuvre as “hairy-chested, big-swinging-dick behaviour”. PUP leader Clive Palmer has distanced himself from it, describing it as the work of “free spirit” Glenn Lazarus.
The bill was waved through the lower house this Wednesday. Speaking at the National Press Club shortly thereafter, Brandis said: “I am determined to do what the community expects to protect it from a real and present threat. I believe that the legislation which we have introduced, and that which is in preparation, does serve that end without compromising the rule of law and without unreasonably abridging personal freedom.”
When The Saturday Paper spoke with Leyonhjelm this week, he was considering whether he might try to unwind some of its measures, particularly section 35P, when the second tranche of security legislation is debated later this month.
“The Labor Party was uncomfortable with the fact I’ve raised legitimate concerns. I don’t think they spent enough time on the bill. What they’ve done is said to me, ‘If there are still things that need attention, it would be possible to address them in the foreign fighters bill’, which is in fact amending the ASIO Act again,” he says. “The possibility seems to be there that I might get Labor support.”
During house of representatives debate on Wednesday, Labor’s shadow attorney-general Mark Dreyfus defended the measures, insisting journalists could not be inadvertently caught up in them, but left open the option of future changes.
“We will continue to monitor the operation of the SIO provisions to make sure that they do not unduly limit the rights we hold dear,” he said. “We will insist that the government do the hard work to build confidence in our security agencies, and we will revisit these measures if necessary.”
The sole voice of dissent from the major parties was Labor MP Melissa Parke. “I do not support a number of key elements in this bill,” she told the house of representatives. “I am particularly concerned that this bill entrenches and amplifies the lack of protection for whistleblowers regarding intelligence information and penalises with up to 10 years’ jail the legitimate actions of journalists and others doing their jobs in holding the government to account in the public interest.”
In a marked contrast with 2002, when Labor senator John Faulkner forensically interrogated the Howard government over the details of new counterterror legislation, Labor made no meaningful contribution during the senate debate, merely saying it backed the government’s legislation, which had been reviewed by a bipartisan committee. Faulkner is on that committee, but much of its deliberations are private. On the next tranche of national security legislation, they will also be rushed.
In the absence of objections from Labor, the only senators questioning details of the bill were Leyonhjelm, the Greens, represented by Scott Ludlam, who challenged the extension of online surveillance, and independent senator Nick Xenophon. The debate, which ran for six-and-a-half hours last Wednesday and Thursday, revealed the congruence of arguments between civil liberty advocates of the left and right-wing libertarians such as Leyonhjelm. They supported each other’s amendments, although they were doomed to fail.
They will also find common ground on some social issues, such as same-sex marriage and euthanasia, but are poles apart on taxes, welfare, carbon pricing, gun ownership and changes to the Racial Discrimination Act. When Tony Abbott abandoned free speech changes to section 18C of that act, Leyonhjelm accused him of trying to “appease” Muslims. This week, he co-sponsored a bill to resurrect those controversial changes, in the process flushing out some Liberal supporters.
David Leyonhjelm, a former veterinarian and agribusiness consultant who has also studied law, brings to parliament some views that are best described as radical. With his mild manner and rimless spectacles, he makes them sound rational. When we talk on Tuesday, the 62-year-old is nursing an injured arm after falling from his motorcycle the night before.
He is coy about who is providing his legal advice, though he does praise his new adviser, Helen Dale. “She has, I think, three legal degrees,” he says. She also has an intriguing literary history, having won the Miles Franklin Award in 1994 for her novel, The Hand that Signed the Paper, written under pen name Helen Demidenko. Controversy ensued over her false claim to Ukrainian ancestry.
At one stage, Dale enters the office brandishing a copy of the 160-page Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, introduced to the senate the week before, to show how extensive it is, given there are only a few days to prepare a submission on it.
Parliament’s joint committee on intelligence and security is conducting a quick inquiry, reporting on October 17. In a submission to the committee, the Gilbert + Tobin Centre of Public Law at the University of New South Wales says the legislation contains some valid responses to the threat of radicalised fighters returning to Australia from Iraq and Syria. But it warns there is no urgency or justification for other measures, such as the extension of ASIO control orders, which are not yet due to expire.
“The idea that it would be a criminal offence simply to travel to an area because the minister for foreign affairs has designated that area a no-go zone is something that should not be supported in a liberal democracy,” says the submission. It also raises concerns that proposed new offences for “advocating terrorism” and “subverting society” could criminalise a range of legitimate behaviours.
If ever there were a time when a libertarian had something to contribute, it is now, as the government pursues legislation that curtails individual freedom in the name of national security, as small-l Liberals bite their tongues and the opposition vacates the field. Labor leader Bill Shorten has written to the prime minister, promising the opposition will do everything in its power to pass the foreign fighters legislation this month.
This week, terror has once again grabbed headlines after police raids in Melbourne on Tuesday led to the arrest of a 23-year-old man, who allegedly raised $12,000 to sponsor a US citizen fighting in Syria. But Leyonhjelm is unmoved by the general panic about terrorism and by the argument that it necessitates the swift passage of new laws.
“They [the government] say: ‘This is an emergency, the laws are urgent, don’t you get too bloody picky otherwise we’ll all be murdered in our beds,’ ” he says. “It’s farcical.”
On Tuesday morning, Prime Minister Tony Abbott presented his new three-word slogan to the Coalition party room meeting, telling MPs he favours the catchline that people should be “aware but reassured”. It lacks the fridge-magnet friendly cadence of the Howard-era “alert but not alarmed” but somehow it does neatly sum up this government’s approach. We are warned of a heightened terror threat; shocking details are leaked of a beheading plot, which are yet to be fully corroborated; armed guards are deployed with much fanfare to protect Parliament House; and amid all this chaos, parliament passes new counterterror laws and citizens are told to trust the government, to be reassured that it is protecting them.
That is not to say the threat of terrorism is not real and present and graver than it has been for some time. To make such a claim would be – to quote Brandis– “wilfully ignorant”. But the cosy bipartisanship around these laws provides little reassurance that there has been thorough exploration of the trade-offs between liberty and security and the consequences of the legislation, whether intended or not.
As for trusting governments, it does not come naturally to libertarians. In the senate, Leyonhjelm appealed to others not to be swept up in the moment.
“To those still inclined to support the bill on the basis of the current security environment and the decency of the government and our security agencies. I say this: the security environment will change, the government will change, and our security agencies will change, but this law, if enacted, will remain.”
This article was first published in the print edition of The Saturday Paper on Oct 4, 2014 as "Brandis welshes on terror talks".
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.