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Thursday, 17 October 2002
Page: 5382


Senator ROBERT RAY (11:53 AM) —Like quite a few senators, I made notes to speak on the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 some weeks ago. One of the first things I did was to try to distil the arguments that others, not I, had run against the bill. The first point I made was from those critics that Australia does not face a terrorist attack. I said that this assumption can only be proved wrong with disastrous consequences. I take no joy out of that prescience. But the fact is that we have international obligations. We must try to prevent terrorism wherever it occurs around the globe. It was irrelevant whether Australia was under terrorist threat—we have to take the appropriate action to prevent it anywhere around the globe. I just find it amazing that some of the critics of the antiterrorist legislation are those people who have previously been the most noted internationalists in this parliament and Australian society. Suddenly that internationalism is reversed: just because we may not be under threat, we should do absolutely nothing about it. I think we have an absolute obligation to stamp out terrorism whenever it occurs and against whomever it occurs.

The second argument I have seen run is that existing powers are sufficient to deal with a terrorist threat. That is just not so. The right to silence must be balanced off against the right of innocent people to be protected. Under existing law, suspects could be questioned, but those who are recipients of information, but not participants, could in fact be exempt from questioning. The right to silence has already been abrogated in several other areas of Australian law that are far less serious than this. The third criticism of the legislation in broad is that ASIO will become a secret police unit if these powers were conferred on it. What is proposed are powers to detain, not to arrest or gather evidence.

When you go back to the original bill, we heard no real justification of it from Senator Brandis in his rather hysterical contribution this morning. The original bill that was introduced into this parliament was poorly drafted, insensitive to civil liberties and had the unintended consequence of maximising criticism across the board from all sorts of usual and unusual quarters. Let us go through the weaknesses of that original legislation. First of all, it allowed for the AAT to issue warrants. Most AAT members are not chapter 3 appointments; they do not have permanency. Therefore, they are under some degree of political influence and control. To allow them to issue warrants is not acceptable in the regime of Australian law. It also allowed Federal Court judges to participate as a prescribed authority—almost certainly unconstitutional. Of course, the government has yet again refused to produce its legal advice on this matter. It produces legal advice only where it is unimpeachable and supports it on the matter. One suspects that this advice has not been produced because it is flawed. At no stage has the Attorney-General properly addressed this issue.

The second major weakness in the original legislation was that it allowed for renewable detention on an unlimited basis. Why was there not a limit put on this in the original bill? I did not know that I was living in South Africa in the apartheid era. This is typical of laws of that apartheid regime. Thirdly, poor drafting allowed that loophole to exist between being detained and being questioned immediately. There is only one `immediately' there, so you could have been detained and not questioned for weeks. The clock starts ticking on your 48 hours only when the questioning begins. How in heaven's name did that get past the drafters?

The fourth area is the lack of legal representation. An argument that can be adduced here is that there is not much point in detaining a suspect or a potential recipient of terrorist information if you allow them to contact their local lawyer, who can then place straight into the hands of the terrorist network the fact that they are under suspicion. But the alternative regime that we suggested—that the Bar Council of Australia provide a panel of security cleared lawyers who, from the very first minute, can represent these people—has not been taken up by the government. There is still this 48-hour period with no legal representation. This is just not part of Australian society. The suggestion from the Joint Committee on ASIO, ASIS and DSD solved this problem—this counteracts the sorts of points made by Senator Brandis today—but it has not been taken up by the government.

We found a total absence of protocols as to how this questioning should occur. Can you question someone for 48 hours on end? Where do you keep them when you are not questioning them? Do you throw them in the local jail? Not one detail was contained in the legislation. It was assumed that the prescribed authority would in fact detail all of those particular procedures. Now, of course, we have advanced. We now have a commitment from the government not so much that the act will not be proclaimed but that it will not be invoked until protocols have been developed and cleared by the Inspector-General of Intelligence and Security. That is a big improvement and it is to be welcomed.

I suppose the greatest stupidity in this legislation as it was originally produced is that there was no prohibition against self-incrimination. Let us take the classic case of someone who is suspected of having knowledge of a terrorist act. They can admit to that under questioning and face a life sentence; they can refuse to answer questions and get a five-year sentence. Which do you think your suspected terrorist would choose? They would take the five years above life every time. The whole intention of this legislation is not to gather evidence but to glean information to prevent terrorists acts. So why would you not have protected the detainees from self-incrimination?

The original bill would have allowed ASIO to detain and to strip search 10-year-olds. The great defender of civil liberties, Senator Brandis, who is now absent from the chamber, apparently let that go through the party room—that you could strip search 10-year-olds and detain them. Their parents would not have been allowed to know that you had detained them. What do you think would happen to a parent whose kid went missing for 48 hours and who could not be told about it? The compromise they put up is a 14-year-old, yet when you go through all these details with the security agency they can hardly nominate someone under the age of 18 who would ever be affected. That is why seven members of the joint intelligence committee—including four government members—said, `Eighteen and that's it.' But the government just could not accept that.

There was no accountability for the number of warrants to be issued. There is a justifiable case for not listing the number of telephone intercept warrants. We have been through all that in the past. If they are really high, it warns people off; if they are really low, it encourages people to use the phone for those purposes. I understand that argument. But in this case it is absolutely essential that the parliament and the public of Australia know how many of these warrants are issued. For instance, if it were only one or two a year, then a lot of the civil liberties problems we have with this legislation would not be deemed to be so serious. If it were scores or hundreds a year, then we would know that this legislation was being used or abused. The government has come to see sense on that.

One of the worst aspects is that the government has rejected a sunset clause, and this is the sort of legislation that must have a sunset clause. We want to see how it works in practice—remember? The Labor Party did not insist on a sunset clause on the other five antiterrorist bills, because we could see the necessity for them to be an ongoing feature of the Australian legal system. But going into this new and tough territory—you are actually detaining people who have not committed an offence—there must be a sunset clause. A government must have to re-present such legislation within three years to see whether the parliament will certify it.

You might ask why this legislation was so draconian. Was it just a clumsy attempt at wedge politics? We know how enamoured this coalition government is of wedge politics. You only have to look at the asylum seeker issue to understand that. In that area, bipartisanship was deliberately and maliciously destroyed. But it seems to me that this is not a wedge political issue. You have to ask yourself whether, if you were a government intending to play wedge politics, you would give the task to the current Attorney-General, Mr Williams. He is a rather avuncular Tory but a ditherer. Let us face it, he has the killer instinct of a six-day-old blancmange. He could not get a kick in a stampede. So I cannot really believe that this was put forward as a wedge political issue. It is more likely that it was a case of: `We will put forward an extremist bill, we will have it referred to a committee, we will then get a compromise up and the bill will float through.' I think those are the tactics employed here. They are not honest tactics and they are not decent tactics. They have backfired very badly, because the bill was so badly drafted and so extreme in its impingement on civil liberties that it has had more critique and more attention given to it than a balanced bill would have had.

I understand—and I am ready to be corrected—that we have not yet seen, either in this chamber or in the House of Representatives, the government's official response to the joint intelligence committee's critique of this piece of legislation. I find that disappointing. However, the opposition have been briefed as to the government's official reaction to that committee's 15 recommendations, and we understand that they have basically accepted 10 of the recommendations on this legislation. I think that is a good thing. In two other cases—in regard to the protocols and to the inspector-general's role—they have not accepted the committee's recommendations but what they have counter-proposed is quite acceptable and in some cases better than what the committee could have proffered. I thank the Attorney-General's Department for developing those two proposals on when the protocols kick in and the inspector-general's role.

The three critical areas in which disagreement remains—not between the opposition and the government but between the government and the joint committee—are legal representation, a sunset clause and the age at which the legislation applies. In those three areas the government has not seen sense. Overall, the tone of the government's response is very defensive—bordering on the smarmy. It reflects the hubris of government. One or two recommendations are grudgingly acknowledged, but for different reasons. It is as though they cannot just come out and honestly say, `The original bill was badly flawed and we accept the criticism by the committee.' Throughout, the common strain is: are these matters constitutional? They never properly address that. They do not produce their legal advice to say that the matters are constitutional. We may well find if this bill goes through that it proves, even in its amended form, to be unconstitutional in some parts.

The opposition has provided a second reading amendment that tasks the Senate Legal and Constitutional References Committee to develop a different regime altogether—to look at whether the AFP, rather than ASIO, should be given powers to detain and question. All I can say to that is good luck. I will keep an open mind on it but I have my doubts as to whether an alternative regime based on Federal Police powers is preferable to one based on ASIO powers. I know that the glitterati of the Melbourne and Sydney legal circles have forgotten the pernicious activities of state special branch police. I have not forgotten. Any sins that have been committed by security agencies in this country, especially in the Cold War days, are nothing when compared to the gross insensitivities to civil liberties committed by special branches operating out of state police forces. I do not want to see the development at a federal level of police forces being given even the sorts of powers that are proposed for ASIO. Conceptually, they have got that wrong. But I will keep an open mind, because you never know—I always acknowledge that there are smarter people around than me and they may well come up with a regime that this parliament could find more acceptable than the nonsense so far put into the legislation by the current Attorney-General.

I want to stress that this is not a delaying tactic. We will get accused of that, of course. The government has been very slow to respond to some of these details. The original timetable put on the joint intelligence committee to report on this ASIO bill was crazy: it only allowed a few days for public submissions; the timetable was just too tight. We ignored it, and we put a resolution to this parliament to extend our terms of reference and time to report. Even then, we had a reporting date of 15 June but we managed through hard work and effort to get the report to the Attorney-General by, I think, 29 May, with the intention of being able to deal with it in the June session. There were negotiations, thank you very much, between the opposition and the government. But what happened to the amendments that we were promised on, I think, 13 different occasions? They never materialised. They were supposed to come in June; they never arrived. So I resent the Labor Party ever being accused of trying to delay this bill. It was the failure to produce government amendments in response to the committee report that delayed consideration of this legislation.

If this second reading amendment to adjourn the bill to the legal and constitutional committee is successful, the government will claim that we are not genuine in our determination to combat terrorism. This is just standard operating procedure for those who believe that patriotism only exists on the conservative side of politics. We as an opposition have a duty, as do the minor parties in this place, to ensure that this legislation is balanced and decent. If people think they are going to put a gun to our heads and call us unpatriotic because we stand by those principles then so be it. I acknowledge that there will be political gain to the government in that. It is just a pity that they put those sorts of political gains above political decency.

We would never have had to refer this to yet another committee if this legislation had been properly considered in the first instance. I was pleased to see the Prime Minister acknowledge that the five pieces of antiterrorist legislation in the end got the balance right. I think he was right in that; there was a lot of cooperation around this chamber to make sure that the balance was right. But in this legislation it has essentially gone one step too far. On the joint committee we had the duty to improve the legislation, not approve it—that was always going to come later.

The crux of this whole debate and the issue that the Senate committee has got to look at is not so much how suspects are treated but how much the civil liberties of people who are not suspected of a crime but have knowledge of a potential crime—they may not even know that it is a potential crime— can be impinged upon to protect others. It is about where you draw the line. If you come down on the side that only suspects should be dealt with in this way, then you can make the legislation tougher, more stringent and more draconian if you want to. But if the main body of people being affected—and this is what I suspect will happen—will be non-suspects who have potential information, then you have to protect their civil liberties. You have got to give them legal representation, but you do not have to give them their choice of legal representation—we can take it that far.

I wish the Senate committee well. I hope—and I am pretty much assured, given their previous track record—that the Attorney-General's Department will take that inquiry seriously and cooperate with it, as they always have. I am sure, given the enormous cooperation that Dennis Richardson and ASIO have given in the consideration of this legislation, that that committee will be able to report promptly. But, again, I say—and this is only an individual point, not a party point—that I have some doubts about giving these powers to the Federal Police. I do not want to see a British-style special branch developed in Australia. Ironically, I would be more comfortable with ASIO and their reputation over the past decade than I would be with the police force.