Senator COONEY (6:10 PM) —I was listening to what Senator Ray had to say about this report and how he related it to the legislation that came in last night, and I must confess that when he was asking questions about what the legislation before us last night was all about it did occur to me that it would be appropriate to say some things about it in the context of how matters were dealt with in respect of the ASIS matter. Mr Acting Deputy President, ASIS and ASIO are, as you know, intelligence gathering organisations with a tradition of keeping things secret in the intelligence area, giving them certain abilities that they would not otherwise have. One can understand why that would happen in that area.

There seems to be absolutely no reason why the sorts of provisions that operate in, say, the legislation that controls the Federal Police, the NCA or any of the policing authorities and Customs should not have been in the Border Protection Bill 2001 that was before us last night. That bill, which has now been defeated, talked about border protection, the sort of thing that you look at not in terms of what ASIS or ASIO does but in terms of what the Federal Police and perhaps the NCA and Customs do. The Border Protection Bill was a very slender piece of work indeed. Contrast that with the Australian Federal Police Act, the Customs Act and the National Crime Authority Act.

Why should we suddenly have legislation brought in that deals with a process that has been dealt with in the other legislation that I have been talking about but abandons all of the traditional safeguards that we have in this area? We have safeguards to prevent the exercise of arbitrary power. I have not seen any legislation that allows the exercise of arbitrary power in the way that the Border Protection Bill did. I am confident about this: I throw out a challenge to anybody to come in here and produce legislation of this kind—in other words, dealing with the protection of our border—that is as arbitrary in its cover as this is.

Senator Robert Ray —I can: the Reichstag, 1938.

Senator COONEY —Thanks. That is probably correct. In a civilised society such as we are supposed to be, in a society where we believe in the rule of law, in a society where we say there should be balances, in a society where we say we have the division of power between the judiciary, the executive and the legislature and in a society where we say that the press should have cover, where would you get legislation such as this? And where would you get legislation such as this produced at such short notice? Where would you get legislation that would allow a very junior member of the Army, a very junior member of the Federal Police or a very junior member of the Customs Service to be dressed up with the sort of power that is allowed for in this legislation? It says that an officer, perhaps a young lady who has been in the Army for six months—I hope that that would not happen, but if you look at the terms of the legislation it allows it—may in her absolute discretion direct the master or other person in charge of a ship—a man of great seniority, it could be; a man who has all the ability that we would want from somebody who commands a ship—to do what she says and, if he does not, look out! As long as that ship is within the territorial waters of Australia, that can occur. Of course, as has been pointed out already, it does not need to be a foreign ship; it could be a local ship—it could be a fishing ship.

I do not want to go on about this because the matters that I have been talking about have been discussed again and again. For the life of me I cannot see why you would want such legislation coming before this parliament when much more traditional legislation could well have achieved the purpose for which it was written. I think it is a tragedy—and I use that word advisedly—that we should have legislation such as this coming in and setting a precedent for others to use. I think it is a matter for pride on the part of the Senate that this chamber stopped this sort of legislation going through. In a certain sense I am not here talking in a party political way, but I am talking in a political way. I am talking of the balances that must be exercised by this chamber. I am talking about that sense of what is right and wrong that should permeate any legislative chamber, particularly this one. I am talking about the duty of the Senate to see that this sort of power, the power that indeed the Star Chamber would have been proud to possess—

Senator McGauran —Oh!

Senator COONEY —He says, `Oh!' Senator McGauran, I invite you to get up and show how this power is in any way limited in the ways that have been built up over the centuries in that fine tradition that English law has left us—and not only English law but also English tradition and English parliamentary history. This is a contradiction of that grand tradition. This is not the sort of bill, I suggest to you, Senator McGauran, that somebody like Sir Winston Churchill would have been proud to bring forward. It is not the sort of thing that he, who had a great appreciation of what the parliamentary process is all about, would have agreed to. I think this bill is perhaps an aberration—let us hope it was an aberration, something brought on in the crisis of the moment—a bill introduced in the context of a tension that hopefully has now ceased. If this sort of legislation is to come back, I hope it will come back in what has now become the traditional way—that is, in the way that legislation dealing with the Federal Police, the National Crime Authority or the Customs Service would be presented. The Migration Act gives lots of power to the immigration department and people within it, but nevertheless the legislation has within it many protections. I wanted to take the opportunity of going on record about this because I do think this was a very bad piece of legislation for the reasons I have already given.

Question resolved in the affirmative.