Bills must be open to scrutiny

Geelong Advertiser, Saturday 29 October 2005, p. 39.

Have you noticed a change in the way laws are being made in this country? Instead of introducing bills into the Commonwealth Parliament, debating and amending them and then finally passing them after they have been through scrutiny in both houses, now the present government announces that it is going to legislate, starts or faces a public debate about potential inclusions in the legislation and then rushes a bill through both houses as if there were no tomorrow.

Sometimes, as with the new so-called anti-terrorism bill, the public are not provided with any detail of the legislation until the Australian Capital Territory Chief Minister puts a draft on his website. Then, when major problems are discovered, the government says everyone knows about the bill and we will run it through parliament in a couple of days. By making laws in this way we stand a chance of losing fundamental rights and liberties which have been established in this country over many years. We may not, but the historical record is not promising. Furthermore, if the legislation turns out to be unconstitutional, as the Premier of Queensland fears, then the effect on all our security could be adverse while liberties have been removed and potentially great damage done to individuals.

In the case of both the anti-terror bills and the industrial relations changes you could almost believe the cynical suggestion that the government has been deliberately putting up extreme proposals so that public attention is focussed on them. Then they can be quietly amended or dropped at a later stage, while other significant changes which have not faced the same public outcry and scrutiny are quietly passed into law.

Despite some scandalous cases in recent years, mainly in the Department of Immigration and Multicultural and Indigenous Affairs our civil servants are honourable and principled people, but entrusting bureaucracies with powers and rights against the citizen is only tolerable if the utmost transparency and access to information is available. In the long run secrecy is the enemy of good government.  The misuse of ‘commercial in confidence’ claims, the detention of migrants without public scrutiny, turning privacy legislation from a defence of rights of the citizen into an excuse for not divulging vital information are all aspects of the disease.

This misuse of privacy legislation operates at all levels. For example, if you wish to object to the rateable value placed on your home, the only case you can make is that it is valued and hence rated more highly than comparable properties in the neighbourhood. But how can you find out what these properties are rated at? Your council will tell you that information is private and may not be divulged. Catch-22.

Of course governments today argue rightly that they are charged with protecting us from external and internal threats to our lives as well as our liberty. They claim that terrorism has changed the world and that we have to sacrifice some liberties to achieve a tolerable level of security. This is a challenge which needs to be faced, but the principles need to be hammered out in public and fully appreciated by the citizens, not entrusted to governments and parliamentary draughtsmen (and women) whose ‘unintended consequences’ may come to haunt us for a generation. The devil is in the detail, and we need to know precisely, not generally, how we may be affected.

Another key feature of good government is ministerial responsibility, an aspect of the Westminster system which seems to be disappearing in Australia. Now ministers can take refuge behind claims that they did not know what was being done in their name within their own department. You have to ask, if they did not know, how could the rest of us?

It is easy in the heat of political debate to make extreme claims about Australia turning into a fascist or Nazi state because of some of the changes to legislation taking place today. Or that George Orwell only got 1984 wrong by a couple of decades. But it remains true, as always, that the price of democracy is eternal vigilance, and as a society we have to examine very carefully any and all claims that things are being done at the parliamentary level for our security and our benefit. As history has demonstrated time and again, not all changes are progressive, and we can sacrifice a great deal by failing to give sufficient transparent and public scrutiny to proposals made in our name by our politicians.