Mr McCLELLAND (Barton) (7.34 p.m.) —I note in passing the Attorney-General's front-hand—not a backhand, I suspect—at the opposition for not agreeing to these amendments. I note for the public record that that backhand was as much directed to a government controlled majority of the Senate Legal and Constitutional Legislation Committee, whose report—
Dr Emerson interjecting—
Mr McCLELLAND —My colleague at the table indicates that they are in strife. That committee has in fact done some tremendously valuable work with respect to an area which is difficult. Yes, terrorism does require greater executive powers. There is no doubt about that. But, equally, to preserve what is a fundamental ingredient to our society's fight against terrorism it is important to keep in play the rule of law and in particular appropriate review of executive action, particularly where judicial discretion is being limited, to do it for a sound reason.
In that context, and in responding to the Attorney-General's comments, I indicate that the unanimous report of the Senate committee, which has a government majority, formed the basis of our reasoning. We acknowledge that the amendments concern the Proceeds of Crime Act. The first point that I need to make is that the bill does not extend the proceeds of crime regime to terrorism for the first time. The fact is that the Proceeds of Crime Act already covers a substantial portion of literary proceeds that could be derived from terrorist activity. Indeed, the grave and unique nature of terrorism is already recognised in the act, which excludes terrorism from the statute of limitations applying to all other offences—that is, from the six years that would otherwise apply. So the government is not the first to recognise the significance of terrorism and actions that need to be taken against it. [start page 31130]
The residual category of terrorist literary proceeds that would be covered are those derived overseas and transferred to Australia; or those derived from overseas terrorist offences which predated the enactment of antiterrorism legislation in Australia in mid-2002. In Labor's view, the committee took a balanced approach to those changes. The committee accepted the need for general amendments to close those two loopholes. Indeed, Labor agrees that those loopholes need closing. Both Liberal and Labor senators accepted this need even though they concluded that the amendments do have retrospective operation.
Liberal and Labor senators on the committee were right about that issue of retrospectivity. These amendments do attach punitive consequences to conduct which did not satisfy the dual criminality requirement at the time it was undertaken. That is the essence of retrospectivity, and it is both the effect and the intention of the amendments. Regrettably, the explanatory memorandum is now a somewhat discredited document insofar as it seeks to assert that the amendments are not retrospective and the government, regrettably, has declined to correct that record. One aspect of this assertion was only ever included to protect the government from loss of face over the fact that it is now introducing a retrospective law, which I think has been implicitly recognised by the Attorney-General, to deal with the issue of David Hicks and Mamdouh Habib.
Labor certainly agrees with the bipartisan recommendation of the committee that the independent review mandated by section 327 of the Proceeds of Crime Act should examine the impact of the retrospective operation of these amendments and, in particular, whether they will have implications beyond the area of terrorists' literary proceeds. The particular amendments that Liberal and Labor senators objected to were those directed squarely at those two Australians—in other words, amendments that did not serve some general law enforcement need but were plainly included to tip the scales in favour of the government in any proceedings it might bring against Mr Hicks and Mr Habib to confiscate any proceeds they received from speaking or writing about their experiences. That is not to say that the opposition supports either of those two men profiting from those experiences; what the opposition supports is the Australian judiciary being in a position where they determine the issue. In relation to item 24, the direct connection between the amendment and the cases of Hicks and Habib is betrayed by the statement in the explanatory memorandum which says:
... this amendment is intended to vitiate a claim that a person's notoriety stems from circumstances related to their commission of an offence, such as their place of incarceration, and not from the actual commission of the offence.
(Extension of time granted) The reality is that there is nothing in the act that would currently enable such a claim to succeed in relation to section 153(1)(a) of the act. The act as currently expressed implies no limitation on the required connection between the commission of an offence and the notoriety being exploited. Indeed, the absence of any intended limitation on the court's jurisdiction to make an order is clear from the report of the Australian Law Reform Commission in 1999, where they said: [start page 31131]
... occasions may arise when the benefit gained by the person is property characterisable as attributable to the experience that the person has gained as a rehabilitatee and wishes to share with society. In such cases, it would seem inappropriate to mandatorily confiscate that part of the benefit, albeit that, ultimately, it is derived indirectly from the person's involvement in criminal, or prescribed unlawful, conduct.
Again, we cannot speculate whether that would or would not be the case in respect of David Hicks or Mamdouh Habib. What we are saying, again in the context of that expert advice, is that these are matters appropriately left to the judiciary. In other words, the proceeds are covered by the act but, as we say, the court should be able to retain discretion.
We also note in respect of proposed section 337A(3) that Labor have consistently had the position that the term `offence against a law of a foreign country' appears often in Commonwealth legislation but is deliberately left undefined, again for the judiciary to have the discretion to determine what is an offence against a law of another country. We believe there is no case for creating an exemption by specifically referring to offences triable by United States military commissions—offences which have been drawn up and promulgated by a single lawyer employed by the United States Department of Defense in Military Commission Instruction No. 2. We understand the fellow to be named William J. Haynes II. These are facts which we believe Australian courts, properly trained and balanced as they are, should be able to consider. The government hangs its hat on the fact that the parliament recently agreed to a reference to United States military commissions in the International Transfer of Prisoners Amendment Act 2004. Clearly, however, we agreed to those provisions for humanitarian reasons, should it be necessary for prisoners to be returned to Australia.
In conclusion, one of the most effective weapons we have as a society in our war against terrorism is, as I repeat, the rule of law. It is one of the most powerful institutions that elevates our society above the perverted activities and objectives of terrorist groups such as al-Qaeda and those who support these organisations. We believe amendments such as item 24 and proposed section 337A(3) and the clear intent behind them tend to weaken the credibility and independence of our judiciary and hence diminish the operation of the rule of law. They should not have been included in the bill, which otherwise confers important new powers on our police to investigate terrorism offences. The bill should not have been used as a vehicle to seek some kind of parliamentary approval of the government's attitude towards United States military commissions. Accordingly, Labor will record their opposition to these provisions. But we indicate that, in view of the importance of the other measures, we will not oppose the passage of the legislation.
Question agreed to.