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Thursday, 30 August 2001
Page: 27144


Senator ROBERT RAY (6:01 PM) —I spoke to this report of the Joint Select Committee on the Intelligence Services earlier in the week. I want to restrict my comments tonight to one aspect of this report. When I spoke previously, I mentioned the controversial aspect of the report that provides immunities to both officers and agents of ASIS in certain offences committed within Australia. This is a very controversial area, obviously, when you are offering immunities to people. When the Intelligence Services Bill 2001 was originally drawn up, this section was fairly tightly drawn. Nevertheless, the select committee still had some minor concerns. As I have previously said, it was a pleasure to cooperate with ASIS, ASIO and the Inspector-General in discussing and teasing out these issues. ASIS was able to come back with a very clever formulation that assuaged the concerns of everyone on the committee. We had proper process. We had a select committee of eight coalition members, six Labor members and one Democrat member. Through a bipartisan and cooperative approach, we were able to establish and define the areas of immunity.

You can imagine my disgust when I looked at a bill that was presented to this parliament last night that had an immense section of immunities in it, ill defined and the most widespread ever to be put into legislation in this country—not discussed between political parties and not teased out as to where the boundaries lay. For instance, clause 7(1) of the Border Protection Bill 2001 states:

Proceedings, whether civil or criminal, may not be instituted or continued against the Commonwealth in respect of action taken under section 5 or 6.

But, even more sweeping, clause 7(2) states:

Proceedings, whether civil or criminal, may not be instituted or continued against an officer who takes action under section 5 or 6, or a person who assists in taking action under section 5 or 6, if the officer or person acts in good faith.

I do not know where you are permitted to break the law `in good faith'. If you look at the definition of `officer' in the proposed ASIS bill—I am comparing the proposed ASIS bill with the Border Protection Bill 2001—the proposed ASIS bill defines `agent' and `officer'. In the Border Protection Bill, an officer can be:

(a) the Secretary, or any employee, of the Department—

that could be any one of 80,000, right down to the most junior cook—

(b) a person who is an officer for the purposes of the Customs Act 1901

that could be several thousand—

(c) a member of the Australian Federal Police or of the police force of a State or internal Territory—

that could be another 20,000—

(d) a member of the police force of an external Territory—

very small I admit—

e) a member of the Australian Defence Force.

I included those with the Department of Defence—60,000 and 16,000. This is an officer—not a person but an officer. So you have this immense number of people who are able to use force, in good faith, who are all exempted from civil and criminal proceedings. Why would we do that when, in another context, we narrowly define it, we pour over the semantics of it, we agonise over it and we get it right? Why would we suddenly produce a bill carte blanche like this other than for the reason it was not given the proper scrutiny that it should have been given? There were no negotiations—we know that—there were no discussions and there was no chance for a committee to look at it. In the case of the Labor Party, we could not even get the Labor Party caucus together to look at it, given the timing. It is my understanding—and I will stand corrected—that the coalition party room did not have the explanatory memorandum available to them when they approved this particular piece of legislation.

So it really is A Tale of Two Cities. It is a tale that says that, when a government maturely considers legislation, it will draft it precisely, the checks and balances will all be accorded and when it goes to a committee it will be further refined and developed in a cooperative and bipartisan atmosphere. This is the way things should work. Politics is, for the most part, an adversarial system, but we do demark certain areas where we would like to see bipartisanship develop for the good of the country. More often than not these tend to be in the foreign affairs, defence, immigration and multicultural areas.

I thought in terms of bipartisanship we were in pretty good shape, until 6.40 last night. Even then, it could have been saved by a bit more tolerance, some pause, some delay and some consideration of that legislation, bearing in mind what other committees had done in different circumstances—and I refer to the ASIS report that is before us at the moment. We could have developed a set of protocols that was acceptable. After all, we are told that already all of these powers exist, that this is only—what is that wonderful term; I have forgotten it already—`an abundance of caution', one of those wonderfully politically correct terms that only a President Nixon or a Prime Minister Howard could have come forward with. No, I am being unfair to Prime Minister Howard. That would not have been his phraseology; it would have been from someone in the Attorney-General's Department. I will not go so far as to say that John Howard would have invented such a term.

I always remember that when Lebanon was invaded in 1982 the operation was termed `Peace for Galilee'. The government is developing this sort of terminology: `an abundance of caution'. I do not take much comfort from a government that will use and abuse us in one process and then seek our cooperation, which is freely and generously given by a diverse group of people, to develop the appropriate solution, when in almost the same circumstances we get this wildly authoritarian view that hundreds of thousands of people—and I am not exaggerating, when you look at the definitions of `officer' and `person'—will be able to break the law provided that they do so in good faith. The government do not say who establishes whether it is in good faith.

There is this blanket exemption, this equivalent of a 16th century papal indulgence, offered in the legislation yesterday. Yet in the ASIS legislation that presents itself here—and which will pass this chamber, I hope, expeditiously—you will find a carefully crafted set of indemnities, ones that are relevant and necessary if we are to properly support the security agencies of this country. In these circumstances we know that we have to cede some of our tendencies towards civil liberties and counterbalance them with the national interest.

But when you are doing a stitch up, all of that apparently goes out the window—no checks and balances; no thought given to a carefully crafted piece of legislation; just taking a sledgehammer to a peanut. I almost feel that I have been used by serving on the committee that produced this report, when in similar circumstances where bipartisanship is supposed to exist all we get is the absolutely authoritarian overkill that we saw in the legislation that was rejected last night.