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Thursday, 5 December 2002
Page: 7340

Senator STEPHENS (6:53 PM) —I too rise to speak on the Legal and Constitutional References Committee report on the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002. I add my comments to the concerns of other speakers about the bill and its intent and I recommend strongly the adoption of the recommendations of the committee, which would actually improve this legislation quite significantly.

I begin by saying that of course Australia's response to the threat of terrorism must be strong and effective protection for all Australians and all that we stand for. But so much of what we stand for is the rights and freedoms that give us the opportunities to make the most of our lives. In responding to terrorism we must ensure that these are not eroded by the very legislation that seeks to protect them. ASIO must be able to function as effectively as possible in responding to terrorism, and Labor believes that ASIO should have enhanced powers to gather information but that it does not need to detain people indefinitely and it needs few safeguards in order to achieve this.

The bill is controversial and unprecedented in many regards. It provides powers for compulsory questioning and detention of non-suspects for the purposes of gathering information relating to terrorism offences. Because these powers are so unprecedented both within Australia and within other Western countries, we need to be particularly careful as to how we safeguard against possible abuses of them. As it stands, the legislation has been poorly conceived and there are few such safeguards, leaving it open to serious abuse.

The committee was exhaustive in considering the complex and contentious aspects of this bill, and I would certainly like to place on record my thanks to my colleagues on the committee and to the secretariat staff for their impressive work on this inquiry. It became apparent in the course of the inquiry that there must be certainty as to the purpose of the bill if it is to have such sweeping powers. That purpose must be information gathering, not law enforcement. As it stands, there is some confusion as to what the legislation allows. Its aim should be fundamentally preventive, not retributive. What we do not want to see is the proposals in this bill being used to detain people for, effectively, unlimited periods of time.

The committee found that the bill should be amended to change what is, as it stands, a detention regime. It should instead be a questioning regime. The Law Council argued that the detention of non-suspects should be conterminous with the questioning and should not continue once questioning has finished. The International Commission of Jurists expressed concern that a detention regime such as that under the bill as it stands could create a shadow criminal justice system, without the safeguards of the existing formal legal system. In light of this, the majority of the committee recommends that the bill must also include a provision ensuring that, once questioning has finished, a person is free to go.

The committee notes that the bill does not limit the time for which a person may be questioned when appearing before a PA. As such, the bill can subject non-suspects to longer periods of questioning than those to which suspects are subjected under the Crimes Act—that is, someone who has committed no offence is subject to a harsher regime than someone who is suspected of a crime. The Crimes Act provides for the questioning of a suspect for four hours, with the potential for an eight-hour extension, and other colleagues in the chamber have elaborated on that point this evening. The committee recommends that this is the basis for maximum time allowable for questioning under this bill and that the provisions relating to this be provided for in the legislation.

I would like to confine my remarks now to the whole issue of questioning and the questioning regime. One important safeguard of the rights of those questioned under the bill is that of legal representation. Significant concerns were raised in submissions as to the limited role of legal representation under the legislation as it stands. The bill allows access to an approved lawyer, but all contact between that lawyer and the person being questioned must take place in the presence of an ASIO officer. As Professor George Williams pointed out, this undermines the value of having a lawyer. Access to a lawyer under these conditions effectively becomes another intelligence gathering exercise by ASIO instead of being an opportunity to receive frank advice as to the situation a person finds herself or himself in.

Under the bill a person being questioned has access only to an approved lawyer. A situation in which a person is detained in secret with only access to a lawyer who has been vetted by the detaining power is obviously open to abuse. Submissions acknowledged, however, that there may be circumstances where a particular lawyer may, because of a possible conflict of interest or a personal connection to a terrorist group, jeopardise an inquiry. Accordingly, the majority of the committee recommends that proposed section 34AA, concerning approved lawyers, should not proceed. Instead, the prescribed authority should be given the power to refuse to permit a particular legal adviser to be present on the application of ASIO if the prescribed authority believes on reasonable grounds that the particular person represents a security risk and that to allow representation by that person may prejudice public safety. The committee also recommends that the communications between a person and his or her lawyer be confidential. In this way, the committee recognises the importance of impartial legal advice as a necessary safeguard of the rights of someone who is detained.

The bill includes some safeguards relating to the videotaping of procedures and the provision of interpreting services. Concerns were raised by many submissions that additional safeguards are also required. Important amongst these is the right of a person being questioned to know the function of all the parties who are present during questioning. The committee also suggests that the bill should specify that information about the rights of someone being questioned be given to them both orally and in writing, with translation into the person's first language if necessary. Access to an interpreter is essential in a situation with complex legal implications, particularly in light of the concerns amongst those making submissions that this legislation might target those persons whose first language is not English. Under the bill the PA can order that an interpreter be provided. However, in addition to this, the committee finds that a person being questioned should also be able to request an interpreter.

Many of these safeguards, as my colleague Senator Kirk has mentioned, are to be included in a statement of procedures. The committee encountered a difficulty in that many of the issues raised in submissions, including the problems compulsory questioning would raise for someone fasting during Ramadan or Lent, could not be addressed by the committee because the statement of procedures had not yet been drafted. Under the provisions of the bill, these procedures need only be approved by the minister, but there needs to be an opportunity for scrutiny of such provisions. Considering the level of community concern about what will be included in these procedures, the committee recommends that the statement of procedures be included in regulations so as to allow for parliamentary scrutiny and, if necessary, disallowance. One concern that particularly bothered me was the issue of the detention and questioning of children. There are provisions under the Convention on the Rights of the Child relating to the detention of children. The convention states:

... detention ... shall be used only as a measure of last resort and for the shortest appropriate period of time.

There were many submissions and much evidence given that raised concerns that children are particularly vulnerable to the reverse onus of proof. There is also the possibility of children being used to gather information about their family members and this would be a completely unacceptable application of this legislation. There is no limit in the bill on the number of times a child can be questioned. If the purpose of continuing to detain a child is to overcome their reluctance to provide information, children are clearly at a much greater risk of coercion. This not only would be contrary to community standards but of course would result in tainted evidence.

The original bill has been amended following a previous committee report to lift the age limit to 14 years and to provide only for the questioning and detention of children who are suspects. This raises the question in my mind of why it would ever be necessary or advisable to detain a child under this bill. If a child is a suspect, they should be arrested and be subject to the full range of protections offered to children under the criminal law. What we need now in this discussion on how to deal with the threat of terrorism is clarity, rigour and care. This legislation as it stands does not reflect this and I have been heartened that during the process of this inquiry, in submissions, hearings and debates, these qualities have been manifest. The bill should be amended to protect the rights of the Australians who may be subject to it.

Question agreed to.