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Thursday, 26 June 2003
Page: 17667


Mr KERR (12:56 PM) —Legislation of this kind ought never to be passed by a nation save under grave threat. The threshold question is: are we such a nation? I think that it is the consensus of this House that we are. That said, we must reflect that the only circumstances in which the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 [No. 2] should be permitted to stand is whilst those circumstances remain. Otherwise, not only is it a breach of the kind of civil liberties that have been spoken of so correctly and powerfully but also it would lack constitutional foundation. The only basis upon which such legislation can be passed through this House is pursuant to the defence power or perhaps—and I put it only hypothetically—to a power that flows from the inherent status of nationhood. The limits of the defence power and the other powers that might exist have been demonstrated in the Communist Party dissolution case—that is, this House itself cannot determine on a subjective basis as to whether such a threat exists but rather it is a matter of objective fact.

I do not think that, with the kinds of threats that the honourable member for Brand has identified, any court would say in the current circumstances that such an objective circumstance does not exist. But I do differ from my colleague the member for Brand when he says that in three years time we will come back here with our sentiment disposed to renewing it. My sentiment will be to remove it entirely from the legislation of this parliament and from any future parliaments, unless there is a demonstrated case that that same objective threat remains.

I might make what is perhaps a brazen political point here, but the fact that we face an increased threat is largely because of reaction to the kinds of policies that this government has pursued—a point which the Minister for Foreign Affairs denigrates. The claim made by the opposition that our involvement in the Iraq war would increase the threat of terrorism to this country was sneered at. But the practical reality we now face is the growing realisation that there is significant and continuing pressure, at least in the short term. That may mean that we in this nation, within our own borders, face the kinds of horrors that occurred to Australians in Bali.

In that framework we are faced with a conundrum. Inevitably, any legislation which compels people to go into custody and be subject to questioning confronts us because that is not normally permitted in our legal system unless there is a proper basis for their suspicion, and there are very limited circumstances wherein police questioning can be permitted. As a parliament we have accepted that these exceptional circumstances require ex-ceptional responses. But I want to take par-ticular exception to the language of the Attorney-General that characterised the response of the opposition as obstructionism.It is not obstructionism to stand up for fundamental principles that all Australians ought to hold dear and which most do. It is not obstructionism to insist that what was draconian legislation be amended in order to be able to be accepted by this parliament. Indeed, in my own personal view, this legislation, even in its current form, still contains measures which, whilst not draconian as the original legislation was, are deeply objectionable and potentially capable of causing oppression, particularly if they are not applied in a sound and considered way by the agencies to whom we are entrusting such great responsibilities.

There is no doubt that the resistance of this opposition has substantially created improvement to this legislation. Anyone who pretends to the contrary is diminishing the work that has been carried out on this side of the House—particularly by my Senate colleague Senator John Faulkner. I might stress that I have only great admiration for him because he has been seeking to find the balance in this difficult equation. I might also observe that within our own Labor caucus I find myself on another side of a divide. (Extension of time granted) Were it solely at my disposal, I would still be saying that there are yet further issues that ought to be changed so that this legislation complies with a framework that I believe is better adapted to the purpose we are seeking to serve but less objectionable on civil liberties grounds. I will address a couple of those points later.

The point is that as members of this parliament we do exercise our powers and prerogatives in a collective process within this parliament as a whole. I contribute as a member of the Labor Party. I have only the highest admiration for the work of my colleagues and for their thoughtfulness in this process even though, in the end, I think there are a couple of sticking points where I would have said that ground still needs to be yielded.

Let me go to the issue that I still regard as most difficult, and that is the point about continuation of warrants. Under ordinary criminal law, we have put in place a situation where, if a person is suspected of a crime, they can be interviewed by the police. They can be interviewed initially for a period of four hours; once that has been brought to a close, it requires the warrant of a magistrate to extend that period, and it can be extended for another eight hours. For all serious crimes that are committed in this country, that has been shown to be a sufficient period. Changing the regime that permitted extended and longer periods of interrogation is one of the things about which I am most proud in terms of the role I have played over successive parliaments, and it is something I claim personal and direct responsibility for. Since the provision was first introduced, with the videotaping of those records of interviews, there has not been a case put that its extension is required in the interests of law enforcement.

By contrast, in this regime we are going to facilitate a period of detention of up to seven days, with periods of questioning within that, in tranches—albeit with breaks—of up to eight hours and in circumstances where a person is not enabled to go home or to have their freedom. Those of us who have not actually experienced the circumstances and pressures that surround an individual when they are detained probably talk about these things a little glibly. I have been both a prosecutor and a defence lawyer. I have seen and have attended with people who are the subject of interrogation in interviews. I have done that in two countries. I know the kind of hurt, anger, resentment and fear that is engendered in those circumstances and I certainly know how it reflects on families. In circumstances such as this, where people may be absent from their families for a protracted period of time without explanation, I treat these things extraordinarily seriously.

The prospect of not only going beyond seven days, but also then having a renewed warrant issued after release on what is essentially the same set of matters that are the subject of investigation seems to me to be one bridge too far. That is not a judgment that we as a House are going to make; I simply make it and I draw attention to a letter that was written to the Prime Minister yesterday by the President of the Law Council of Australia. In that letter, the Law Council of Australia recommended that the bill not be passed in its current form. It pointed out that the bill applies to the questioning and consequent detention of a person not suspected of criminal behaviour. It stated:

At the very minimum, the Law Council would submit that approvals and a warrant authorising the questioning of a person already subject to questioning under the regime ... should not be permitted on subsequent occasions unless in addition to the existing tests—

five further tests were satisfied. The tests had the following requirements:

new information, not previously in the possession of security or police agencies at the time of the initial approval for questioning, is brought before the approving and authorising authorities;

it is explained why the information was not reasonably available at the time when the initial period of questioning was approved and authorised;

the information must raise an issue of a substantially different kind from that previously relied upon for the grant of approval and authority to question the person;

the information must not have been derived from answers provided by the person as a result of the previous questioning undertaken under the regime established by the Bill; and—(Extension of time granted)

The Law Council went on to state:

the subject matter was not substantively canvassed during the questioning which has previously taken place under the regime authorised by the Bill.

The Law Council concluded:

The purpose of these requirements is to ensure that the time limits prescribed in the Bill have meaning. Further questioning on information given during questioning, if not limited, is paramount to endless interrogation.

I think the Law Council made one small mistake: they meant `tantamount' not `paramount'. Nonetheless, the points are strong. The language in the letter—I do not take it further—is strong. The Law Council proposed that this parliament not pass the legislation without the addition of those further provisions.

That is not going to be the circumstance that applies after this debate but it goes to the very important point that all speakers have addressed: we are implementing a regime which is extraordinary in its application to Australia. It is extraordinary in the way in which it will subject at least some individuals to treatment by interrogating authorities, to administrative detention in a way which has never hitherto been permitted under the laws of this country. It ought to be seen as only a response to extraordinary situations. It ought to be seen as something which is so exceptional that, when we do come back in three years, we start from the proposition that it should be removed entirely from the statute book unless a proper case for its continuation is made out. This is not the sort of legislation we should treat as something which, once introduced, is simply another part of our political and legal landscape. It is not that. This is exceptional and it is extraordinary, and the only foundation on which it can be based constitutionally is extraordinarily thin if you take that bedrock away.

For those who practise as lawyers the legislation is also going to change the manner and nature of how they do their work. Whilst it is true that a person has access to a lawyer of choice, it is extraordinarily limited in the manner in which they can conduct that responsibility. All their communications with their client must be monitored. That means that the freedom to provide unfettered advice to that client is going to be extraordinarily constrained. This is another matter that we ought to return to. The Leader of the Opposition has indicated that were we in government we would move further amendments, and if we do come to office we will do so, firstly, to reduce the period of questioning to three days; secondly, to overturn the reversal of the burden of proof; and, thirdly, to reduce the period of questioning to 20 hours. These are sensible proposals, not extraordinary ones. They accept the basic proposition that was available from the opposition right from the start: we need to change our laws and to provide additional powers to our security agencies during this period of time.

Nobody on this side of the House, including me, would ever have resisted the Attorney-General coming into this parliament and putting forward a set of propositions that would have enabled the questioning of nonsuspects for limited periods of time with proper safeguards framed around the results of discussions and consultations with the opposition. That did not happen. Instead we had an outbreak of the wedge politics that the member for Brand and the Leader of the Opposition have referred to. We have had a coruscating debate within the community about legislation that was cast in draconian terms and put out there in order to be drawn back. I do not believe that the exercise has been conducted in any good faith whatsoever. I condemn the Attorney-General rather than congratulate him on the fact that the legislation was proposed in such terms and that we still have legislation to which no previous Attorney-General of this country would have been proud to put their name.