Joanna Tuffy (Labour)

Senator Cummins referred to the delay in bringing the legislation to this House. One of the problems about such a delay, even though it is not the longest delay in bringing a Bill to this House, is that the legislation is no longer under the media spotlight. Many criticisms of the legislation have been forgotten. The criticisms of the legislation made in 2002 and 2003 stand.

Senator Mansergh said the legislation is an expression of international solidarity. We must remind ourselves that we are working in the context of a very different international scene where governments with which we traditionally work are introducing questionable responses to terrorism. There is the example of the United States which introduced the detention of people without trial in Guantanamo Bay. Today, Mr. Charles Clarke, the Home Secretary in the UK, from which we have inherited our legal system, announced that the detention without trial of terror suspects will be replaced with a system of control orders. These will include curfews, tagging and a requirement for suspects to remain at their premises. These orders will apply equally to foreign suspects and British citizens suspected of international or domestic terrorism. Such orders would be preventative. What struck me is that Irish people would be subject to this new legislation when it is implemented in the UK. We have had much experience of Irish people who were the subject of miscarriages of justice. This is partly as a result of draconian legislation in the past. If anyone should have learned from the mistakes of going down this path, Irish people should have done so.

This legislation does not go as far as the measures being introduced in the UK, but it is far-reaching in terms of civil liberties and human rights. Section 6(5) reads:

To avoid doubt, the fact that a person engages in any protest, advocacy or dissent, or engages in any strike, lockout or other industrial action, is not of itself a sufficient basis for inferring that the person is carrying out an act with the intention specified in the definition of "terrorist activity".

The definition of "terrorist activity" is an act being committed with the intention of seriously intimidating a population and unduly compelling a government or an international organisation to perform or abstain from performing an act, or seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a state or an international organisation. This definition is far-reaching. I do not believe it is the safeguard people might think it is or the Minister has indicated it is. It is saying that it is not in itself a sufficient basis to use it against people. In other words, it could be a basis, but it is not a sufficient basis. This means that a person involved in a protest, advocacy or dissent or engaged in a strike, lockout or other industrial action could have that used against them. The act might not be sufficient in itself but it could be used against people, which could have far-reaching consequences. That this is included in the Bill makes it more likely that it would be taken on board by a court. I am not convinced it is the protection it is supposed to be.

Subsection (6) refers to an act being committed in the opinion of the Attorney General and that no further proceedings in the matter may be taken except with the consent of the Attorney General. However, it allows for remanding in custody. I would like clarification on whether the person could be remanded indefinitely in the meantime. There is a presumption that a court can be satisfied that it is reasonable to assume the act is committed with a terrorist intention. It is outlined in the Act that the person shall be presumed, unless the court is satisfied to the contrary, to have committed or attempted to commit the act. I understand this was not included in the framework decision. My understanding it that this measure is being introduced by the Government without its being compelled in any way by the international community. The Minister may contradict me if I am wrong. A rebuttable presumption about intent is the opposite to the way our legal system is usually intended to work. I have serious concerns about this and other aspects of the legislation.

Reference was made to the need to implement the recommendations of the Hederman report. Is this the Government's response to the report because it goes in the opposite direction to what the report intended? This criticism has been made and I am concerned that it is normalising emergency type legislation. The Bill is not being introduced as a temporary measure. It does not have the review provisions that exist in regard to offences against the State legislation. It was argued in the Dáil that it should include these provisions. I agree with the point of view that terrorism is an attack on human rights and we must do what we can as a society to prevent it. At the same time one must keep things in perspective in terms of laws. It is important to put in place measures and resource them to ensure that our society is safe. We must guard against introducing laws which remove rights, which are not as effective as they are meant to be and which could cause more dissent in our society.