MONDAY, OCTOBER 31, 2005
Subject: Counter-terrorism legislation; immigration policy
STEPHEN SACKUR: Australian politicians are looking to London, the focus of their interest, Tony Blair’s package of anti-terrorism legislation. The Australian Government is planning something remarkably similar, though with less public debate. Today my guest is Australia’s Attorney-General. Is he about to allow collective security to trump individual liberty? Philip Ruddock, welcome to Hardtalk.
ATTORNEY-GENERAL: Thank you very much.
STEPHEN SACKUR: Your Prime Minister, John Howard, he said a few weeks ago that new anti-terror laws would give Australia the necessary weapons to fight the current terror threat. Are we to take it from that that Australia is vulnerable to terror right now?
ATTORNEY-GENERAL: We certainly are. I mean, we’ve been attacked directly, offshore. Our mission in Singapore was targeted some five years ago, the year 2000, along with others. There were the bombings in Indonesia, first in Bali, then in the Marriott Hotel, then at our mission and then Bali II. Clearly, Australia’s interests are targeted. There are people in Australia who are intent on carrying out terrorist acts. There are people who have trained with terrorist organisations, who have returned to Australia. Those facts are well known.
STEPHEN SACKUR: The Australian media reports that intelligence sources are telling them that around 800 militants-Islamist extremists-could be active inside Australia. Is that your information?
ATTORNEY-GENERAL: No. Any figures I’ve seen are highly speculative.
STEPHEN SACKUR: What sort of figures have you seen?
ATTORNEY-GENERAL: Well, I’ve seen figures that the organisations have and I don’t put them in the public arena, and there’s good reason for that. But what I can say is that it is well known that there are people of interest. There are people who have been the subject of enter-and-search operations. There were a group of people who were linked with Jemaah Islamiyah, a number of whom left Australia after enter-and-search operations. There are other people who have been believed to be involved in inappropriate behaviour, who have been the subject of interest, and where some of those matters have been publicised.
STEPHEN SACKUR: That’s a good analysis of the nature of the threat, as you see it. Let’s now talk about the package of measures you’re putting forward to tackle it inside Australia. Again, Prime Minister Howard, he says, ‘Nothing in the proposals would infringe on individual rights’. You think, for example, that it is the right of anybody who is detained to know the detailed case that is against them?
ATTORNEY-GENERAL: Subject to the qualifications I’ve made that there are matters that you might need to protect because there are broader national interests involved.
STEPHEN SACKUR: But isn’t there a fundamental problem here because you’re proposing, for example, that preventative detention could be extended up to two weeks in Australia. You’re also proposing that certain terror suspects might be held under control orders; ‘held’ in the looser sense of being under a form of electronic surveillance-some call it house arrest-for up to a year. And those decisions could be taken without them or their lawyers having any representation in the first instance.
ATTORNEY-GENERAL: Well, if they’re granted, as they are under our law now in relation to apprehended violence, ex parte. But the measures that we are proposing will be the subject of judicial review.
STEPHEN SACKUR: Would you at least acknowledge that they are infringements of individual liberties, what some would call traditional Australian values?
ATTORNEY-GENERAL: No, and I would argue that there are certain fundamental human rights and if you look at the international instruments that deal with them, you’ve got national interest in terms of protecting people’s righ t to life and security are taken into the balance. People talk about the right to freedom of speech but in Australia, and I assume in the United Kingdom, you cannot use it to damage somebody’s reputation falsely, and defamation laws apply. In relation to freedom of movement, you can’t choose which side of the road you’ll drive a car on to put somebody else’s life at risk. Now these are asserted as rights but they’re not absolute because you know sometimes other interests that you need to take into account.
STEPHEN SACKUR: But what I want to ask you is why is it that so many voices that know a great deal about this matter disagree with you? Let’s just quote one, John von Doussa, who is a former federal judge and I’m sure you know him, President of the Australian Human Rights and Equal Opportunity Commission. He says: ‘We’re now contemplating a situation where a person who is detained by mistake,’ let’s say, ‘will not have any real opportunity to contest their detention on the basis that the authorities got it wrong’.
ATTORNEY-GENERAL: Well, I’ve read von Doussa’s statement and I thought it was a balanced statement in which he...
STEPHEN SACKUR: So you agree with him?
ATTORNEY-GENERAL: Well, I agree that there need to be appropriate safeguards, and that’s what we’re seeking to put into the legislation.
STEPHEN SACKUR: You want to see safeguards? A lot of people believe the way these proposals are currently constituted, there are not sufficient safeguards. Important people inside your own ruling Liberal Party, including Malcolm Fraser, a former leader of your party. He said: ‘These are powers ... that is, powers that you want to introduce for your government ‘whose breadth and arbitrary nature with lack of judicial oversight should not exist in any democratic country’. That’s your former leader.
ATTORNEY-GENERAL: I served with him and I’m sure if I was serving with him again dealing with the very issues we face, he’d be proposing the measures that we are.
STEPHEN SACKUR: One of your own MPs, Petro Georgiou, he said there will have to be changes. He’s basically addressing you. There will have to be changes to allow for more safeguards. He says there must be an independent watchdog to oversee implementation of these changes.
ATTORNEY-GENERAL: I would argue, and the Prime Minister has argued, that in relation to each of these measures there is substantial review already. We have said there will be revision of these measures-a review of these measures-after five years of operation. There will be a sunset clause in relation to some of them. We’ve said ...
STEPHEN SACKUR: So that will be for 10 years, not five.
ATTORNEY-GENERAL: Yes, that’s 10 years, a sunset clause.
STEPHEN SACKUR: So these laws are going to be in place for 10 years?
ATTORNEY-GENERAL: Yes. You tell me that the terrorist risk that we face will be over in less than 10 years and ...
STEPHEN SACKUR: But my point is if you’ve not calibrated this correctly, if the oversight that you believe is in there is not adequate, as Malcolm Fraser, Petro Georgiou and many others say, once these laws are on the books, that’s 10 years Australia is going to live with this.
ATTORNEY-GENERAL: Well, I simply make the point that laws can be reviewed by parliament at any time.
STEPHEN SACKUR: But what your critics say you-you-are ignoring is the fact that unlike the United States of America, most European countries, indeed Great Britain, through the Human Rights Act of 1998, Australia does not have any form of a bill of rights, and that is a fundamental problem when it comes to considering how oversight and safeguards will actually work in practice.
Let me quote to you George Williams, Professor of Law at the University of New South Wales: ‘Australia is looking to copy new powers such as control orders’, which we have talked about, ‘preventive detention from Britain without their most important safeguards.
British law is read in the light of the 1998 Human Rights Act. The best we can do in Australia is trust our politicians and government not to abuse their power’. Isn’t that the difference?
ATTORNEY-GENERAL: Well, let me deal with George first. I know him well, he’s a distinguished academic but he also takes a political position. His political position is Australia should have a bill of rights. He is using this as an opportunity to argue that. There are others...
STEPHEN SACKUR: Should Australia not have a bill of rights?
ATTORNEY-GENERAL: There are a number of people who look at bills of rights around the world and take the view that if you entrench today’s orthodoxy and put it in the hands of unelected judges to determine what standards you will observe, can leave you, as they are in the United States, with values like the right to bear arms entrenched forever and incapable of being modified if there is a change of circumstances.
STEPHEN SACKUR: I think most jurists would argue that the bill of rights has worked pretty well in the United States and indeed in many other countries.
ATTORNEY-GENERAL: Well, if they want to argue for the defence of the right to bear arms, I’d like to hear them. Our system is different but it has measures included in it which are designed to ensure that it operates effectively in respecting the rule of law and also democratic institutions and the right of the people to decide the nature of the laws under which they’ll live.
STEPHEN SACKUR: You’ve mentioned the parliamentary system, the democratic system, the context in which these laws are going to be passed. You’ve also talked about a healthy public debate. The truth is there hasn’t been a healthy public debate in Australia about your measures because they were introduced in secrecy.
ATTORNEY-GENERAL: Well, I mean, that’s just wrong.
STEPHEN SACKUR: Twenty-seventh of September, this is when the proposals were put on the table to the Chief Ministers of the various states in Australia, and that particular time, the general public wasn’t informed about the nature of the package of measures at all.
ATTORNEY-GENERAL: Every measure that you implement by way of amendment to law involves a staged process, and that is still under way. And I think it’s quite...
STEPHEN SACKUR: Forgive me, but is it not the case that had one of those Chief Ministers, present at that meeting, chose not to leak some of the detail of the proposals on to his website, the Australian public, at that point in the debate, would have had no chance to discuss the merit of your proposals at all?
ATTORNEY-GENERAL: And I would agree that we would not have commenced the discussion on the specific detail of the legislation until a later point but it would have occurred.
STEPHEN SACKUR: How much parliamentary debate is there going to be on these proposals?
ATTORNEY-GENERAL: Well, quite considerable parliamentary debate and public debate, as you would expect in a robust democracy, and it’s occurring now. Obviously, when we had agreed on the form it should take, it would have been published with a view to allowing for further discussion and, of course, there are other parts of the process ...
STEPHEN SACKUR: But the bottom line is that Jon Stanhope, one of the Ministers present at this meeting, felt so uncomfortable about the lack of debate around this hugely important issue that he chose to leak it. And there are many people on all sides of the political spectrum, including Malcolm Fraser but many others too, who say that the nature of the debate in the run-up to a parliamentary vote on this has been simply inadequate. And they also point to the fact that as things stand, the day of the vote is supposed to be the day of Australia’s most important horse race when, in fact, the attention of the country is diverted onto a sporting event and you have deliberately introduced your bill on that very same day.
ATTORNEY-GENERAL: Well, the timing is still a matter of some negotiation and it may o r may not happen precisely on that day. But let me deal with the issue about whether or not on the day a horse race is held the Parliament ought to be considering legislation. The Parliament determined that it would sit on that day and what you’re saying to me is that having determined to sit on that day there are some bills that should be on the agenda and others that shouldn’t. I’m saying ...
STEPHEN SACKUR: Suggesting that what is effectively a national holiday in Australia, when people’s attention is diverted elsewhere is perhaps not the best day ...
ATTORNEY-GENERAL: It is not a national holiday.
STEPHEN SACKUR: I know it’s not a national holiday but it is a huge event ...
ATTORNEY-GENERAL: No, it is an event in one state in which people who are interested in horse racing observe.
STEPHEN SACKUR: You would challenge the idea that it is a national event, would you?
ATTORNEY-GENERAL: No, I’m simply saying it is of sporting interest. The Parliament elected to sit on that day. The Parliament will be conducting parliamentary business and if the Parliament elects to deal with this piece of legislation over and above another, I don’t draw any inferences or implications from that.
STEPHEN SACKUR: My point is simply this: that the former leader of your own party has said on 19 October: ‘The government has sought to nobble the field on this one in secret and to prevent debate’.
ATTORNEY-GENERAL: Well, he’s wrong, isn’t he? Because there is considerable debate even to the extent that I’m appearing on your program and people are putting these issues. And I would simply go on, that debate is not yet concluded. Look, what is happening here, and it’s very important to understand this, there are people who are engaging in debates about semantics, about the adequacy of the protections, not about the measures that we are seeking to implement.
STEPHEN SACKUR: There are people who are talking about basic human rights, whether this package of measures you’re introducing is really compatible with Australia’s basic freedoms and democratic values.
ATTORNEY-GENERAL: And I’m saying they are. But I’m saying people are not arguing against control orders. They’re not arguing against preventive detention. They’re not arguing against the notices to produce. They’re not arguing against the changes in relation to the ASIO legislation. They’re not arguing in relation to the measures that enable authorities to stop and search in certain circumstances. They’re not arguing about whether or not people should be punished for leaving luggage unattended. These are a range of measures. What they’re focusing on is whether the protections that we are including are adequate and appropriate, and we have responded to that. There are some changes intended in response to that debate. There is a vigorous debate about this issue in Australia. That’s a good thing. But the fundamental measures and the need to protect the Australian community, their personal safety and liberty as well as their security and their right to life, are not being attacked.
STEPHEN SACKUR: Well, I would beg to differ. Human Rights Watch on 13 October released a statement saying: ‘The measures severely threaten Australia’s civil liberties and violate international law’. Matters of basic challenge. It’s not just about safeguards and protections. It’s about the basic framework of law that you’re proposing. And to take it further, let me quote one senior Muslim leader in your own country, Sheik Taj el Din al Hilali. He said, on 19 October: ‘These laws are akin to holding an M16 and pointing it at the Muslim population in Australia. These laws are dangerous for Australia and for Australian society’.
ATTORNEY-GENERAL: Sheik Taj, I know well, and he’s given to colourful expression at times, and I don’t think those laws, in any way, reflect the statement that ...
STEPHEN SACKUR: But do you not worry, given that your own Prime Minister said that it was the obligation of the Muslim community-300,000 of them in your country-to ‘bust open the militant network’, do you not worry that then there are significant spokespeople for the Muslim community in your country deeply critical of the proposals you’ve come out with?
ATTORNEY-GENERAL: The point I would make is that there is a requirement for people who settle in Australia, make a commitment to Australia, to respect the rule of law, our parliamentary institutions, our democratic values, and people are entitled to expect that their Government will provide for their safety and security. And for people to argue that some should be free to conspire to take other people’s lives without us endeavouring to take some pre-emptive action in relation to that misunderstand, I think, the nature of the debate that we are in today - a debate where those who are engaged in terrorist activity are prepared to use our values and our system to put themselves beyond reach.
STEPHEN SACKUR: Would you accept that Australia is a target, in the way that you’ve outlined, as a result of the unflagging support that your Government has given to George Bush and his war in Iraq and his war on terror?
ATTORNEY-GENERAL: No. No, and let me say why: 2000. There’d been no reaction by the United States in relation to what was happening in Afghanistan, to bin Laden. The year 2000, when our interests were first attacked or planning was undertaken for an attack, there had been no invasion of Iraq.
STEPHEN SACKUR: I’m simply asking whether you would be prepared to acknowledge that as Gareth Evans, a former Foreign Minister of your country has said, Australia’s support for the US has raised its profile as a target amongst Jihadists?
ATTORNEY-GENERAL: Look, there is no doubt that some Jihadists-using that term- claim that it is our response that now makes us a target and if we hadn’t been targeted before, those arguments might have credibility. But we were targeted before. STEPHEN SACKUR: Do you believe you’re getting the right kind of cooperation from neighbouring countries in your region in the fight against terror?
ATTORNEY-GENERAL: I certainly believe that we’re operating in an environment where places like Indonesia, Singapore, Malaysia, the Philippines, are very anxious to deal with these issues and to deal with them effectively. They have their own challenges in being able to do so. They recognise that there are issues of capacity building that they have to address. At times there are issues in relation to the framework of law, which also has to be addressed, and there are sensitivities in relation to their own populations, which need to be understood.
STEPHEN SACKUR: Indeed, there are. In Indonesia Abu Bakar Bashir who, I believe, your Government sees as an absolute mastermind of Jemaah Islamiyah and the threat of violence against Australian targets, it looks as though he’s again about to be released as a result of parole inside the Indonesian penal system. How do you feel about that?
ATTORNEY-GENERAL: Well, we feel that remissions of the sort that are being offered, given the nature of his engagement, are inappropriate and we put that to the Indonesians but the decisions in relation to these matters are their’s.
STEPHEN SACKUR: So you’re not happy with the Indonesians about that?
ATTORNEY-GENERAL: Well, we made it very clear that we believe that further remission should not occur and we continue to put that and we’ve put it publicly.
STEPHEN SACKUR: And do you want them to ban Jemaah Islamiyah?
ATTORNEY-GENERAL: And we’ve argued for that. But look, the fact that you put to another democratic government your views as to what they should do and it’s not achieved really reflects the nature of the robust relationship that we have. And I think it’s... even though I disagree with the decisions that have been taken, I think it’s inevitably a far better Indonesia that now has an elected government dealing with these issues than what we faced before.
STEPHEN SACKUR: You’ve talked a lot today about defending Australia’s values, democracy, freedom. In that context, are you embarrassed that so much international attention is still focused on the way Australia treats would-be immigrants who try to reach your shores, who are then put into remote detention camps in the middle of the Australian outback in what human rights groups describe as appalling conditions?
ATTORNEY-GENERAL: Well let me just deal broadly with the issue. Am I embarrassed? No. Australia is a very...
STEPHEN SACKUR: You’ve got to deal with the issue in specifics because you were the Immigration Minister for several years.
ATTORNEY-GENERAL: Yes, I will. I served as the longest in that office at any time in our recent history. But a robust, generous immigration program, a program that settles refugees, the most vulnerable refugees, in circumstances where even in the United Kingdom such places are never offered, needs to be supported by a robust framework of law that ensures that your entry criteria are properly met. So I don’t apologise at all for ensuring that when we have laws, we seek to uphold them, and if people...
STEPHEN SACKUR: And you do not think it is in any way unacceptable that a little Iranian boy, who was at the time five years old, could be put in a razor wire detention camp, could then be forced to witness because of where he was, hunger strikes, water cannon being used on detention camp detainees, who were so psychologically damaged that he could no longer eat, had to be hospitalised and was then returned to the detention camp, you are saying that that sort of treatment of a child is appropriate and acceptable in Australia?
ATTORNEY-GENERAL: Well, you assert that as if it’s all fact, and I’d simply say the matter at the moment is sub judice in Australia because there are certain allegations that are being made that yet have to be proven.
STEPHEN SACKUR: This boy and his lawyers are now suing your Government for compensation.
ATTORNEY-GENERAL: There are certain allegations that have to be proven, and I can’t comment on a matter that is presently before the courts.
STEPHEN SACKUR: But my point is a general one.
ATTORNEY-GENERAL: And I’ll deal with your general point.
STEPHEN SACKUR: Is it acceptable for children as young as five years old to be put in these detention camps? ATTORNEY-GENERAL: It is unacceptable for children to be exposed to the risk of dangerous voyages across very hazardous seas, to breach Australia’s laws, for the purpose of bringing them...
STEPHEN SACKUR: But with respect, Mr Ruddock, that is going to happen whether you like it or not. The question for Australia is what you do about it?
ATTORNEY-GENERAL: Well, what we have done about it is ensure that it is no longer happening. We have seen many hundreds of people tragically die because of the efforts of people smugglers and for us, when you had on a vessel known as SIEV-X, I think, 357 people drown at sea because somebody convinced a group of people that they could be smuggled to Australia to circumvent our immigration rules, something needed to be done, and it was. [emphasis added]
STEPHEN SACKUR: The point is that your message is still, to anybody who brings children into Australia by that sort of route, they will end up in razor wire detention camps with the context that I’ve just described and you think that is fine?
ATTORNEY-GENERAL: No. What I’m saying, to people who are interested in coming to Australia, is that there is a proper way in which you can apply. Your claims can be considered and whether they’re refugee claims, whether they’re migrant claims, and you should accept the outcome of that decision making. That’s what I’m saying, and you should not expose your family to risks of the sort that I have identified by seeking to circumvent our law.
STEPHEN SACKUR: Philip Ruddock, thank you very much for being on Hardtalk.
ATTORNEY-GENERAL: It’s a pleasure. Thank you very much.