INTERVIEW - ABC 7.30 REPORT WITH KERRY O’BRIEN
Wednesday, 12 August 2009
Subject: Discussion Paper on National Security Legislation
O'BRIEN: Robert McClelland, you're seeking to toughen up anti-terrorism laws that are already quite draconian. You want to expand the definition of the Terrorist Act to include psychological as well as physical harm. Why is that necessary? What sorts of psychological harm? What prompted the change?
McCLELLAND: Really, advice. People can suffer psychological harm as well as physical harm. I mean, the evidence of people seeing traumatic events, seeing people injured, the fear of that occurring can most certainly cause psychological harm.
At the end of the day, one of the modes of operation of terrorist organisations is trying to evoke fear and insecurity in societies: those emotions of course being psychological.
But I should say this package of measures we've issued for discussion really seeks to achieve a balance. In some areas we're hardening the laws. In other areas we're moderating, introducing safeguards as well as clarifying for more effective use.
O'BRIEN: But it becomes a much vaguer proposition than physical harm, doesn't it? It introduces a risk that's not already there? In terms of being able to prove something like that?
McCLELLAND: What we're doing is simply talking about harm.
We're removing the descriptor of physical. It's actually a threat to cause harm to a person. By not restricting it to physical harm, clearly the courts would then be entitled to consider that the person intended to cause a psychological harm, widespread panic in the community, widespread fear in the community.
Bear in mind that, if you evoke fear in the context of a sporting fixture – the Grand Final's coming up, for example – if a person evokes fear, that in turn can have physical consequences a stampede a trampling and so forth. So a motivator of terrorist acts is in fact to cause fear and insecurity in the community.
O'BRIEN: Why is it necessary to give police power to enter and search premises without a warrant when a warrant is really only a phone call away now, under the existing law?
McCLELLAND: That will apply in exceptional circumstances, and it essentially replicates powers that the State Police have. That is, if they believe on reasonable grounds that there is contained within premises a device, such as a bomb or a substance such as a chemical – anthrax or whatever it may be – they are empowered to enter those premises to render safe those premises.
The safeguard is that they are not permitted, as a result of that entry without a warrant, to undertake law enforcement, evidence gathering tasks. They have to seal the premises and they have to go away to obtain a warrant.
The whole thrust and intent is to enable police to render a premises safe and specifically to address some explosive device or material or another dangerous substance such as a dangerous chemical.
O'BRIEN: You've said today that events of recent weeks demonstrate that terrorism continues to pose a significant threat to Australia and Australian interests both here and abroad. Can you clarify whether you're referring in part to the recent arrest in Melbourne, because if you are, that would suggest that you as Attorney-General are presupposing guilt when none has yet been proved, wouldn't it?
McCLELLAND: We have a presumption of innocence in this country, and any person charged with a criminal offence is entitled to that presumption of innocence. We've seen three Australians killed in the Jakarta bombings, and certainly we've seen successful prosecutions that have occurred in Melbourne. The current accused are entitled to the presumption of innocence.
O'BRIEN: So just to clarify, you're saying categorically that you were not referring to anyone in those recent arrests in what you've said today?
McCLELLAND: That is the case. Emphatically, anyone charged with a criminal offence under our system of justice is entitled to the presumption of innocence, and that is the case with any accused.
O'BRIEN: You say at the outset that there's no greater responsibility of Government than to protect the safety and security of its citizens. If you followed that logic far enough you'd ban motor cars and kitchen knives. Aren't other basic rights of citizens as important as those rights to protect?
McCLELLAND: The whole aim is one of balance.
The Prime Minister in his National Security Statement said getting that balance right is a challenge. In fact, I recall reading a judgment of a Judge of the Supreme Court of Israel who had to consider the legality of proposed torture when there was an impending attack and he said, and I remember his words to the effect that: terrorists can kill and maim and they can destroy property, but only we, by our response to terrorism, can destroy our institutions of governance and the soul of our community.
It is important to reflect upon those words and ensure that the appropriate balance is struck, that we give our law enforcement and intelligence agencies the tools and powers that they need, but we ensure that there are appropriate safeguards in place so that we, in empowering them to protect us, don't ourselves undermine those crucial values and democratic institutions that we have.
O'BRIEN: The AFP didn't exactly cover itself with glory in the Haneef case. The Clarke Inquiry was highly critical of a number of aspects of how the Haneef case was handled. You have now put the AFP under parliamentary oversight. Is it the sort of oversight that might have prevented the embarrassment and the mishandling of the Haneef case?
McCLELLAND: I must say we've also given powers to the Inspector General of Intelligence and Security to also look at the powers of the Australian Federal Police.
The reality is that the inquiries into police action would occur after the event. But clearly, lessons would be learnt.
We have, however, introduced a number of safeguards. For instance we've adopted the recommendation of Mr Clarke to put a ceiling, or a cap, on the length of time that a person could be held after arrest and before charge. That would be a maximum period of seven days' suspension, allowing for the additional period covered in the legislation. It would put the absolute cap at eight days. But that is relevant, bearing in mind that Dr Haneef was held for 13 days.
We've also introduced safeguards so that before an application is made to suspend the questioning period, it has to be approved by a senior officer above Superintendent, and the application has to be made to a Magistrate.
So there are a number of safeguards that we've introduced, obviously arising specifically from the recommendations of Mr Clarke in respect to his inquiry into that matter.
O'BRIEN: Robert McClelland thanks for talking with us.
McCLELLAND: It's my pleasure.
[Ends]
