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Tuesday, 10 December 2002
Page: 7627


Senator FAULKNER (Leader of the Opposition in the Senate) (9:50 PM) —by leave—I move opposition amendments (7), (8), (11), (14) to (18), (21), (22), (26), (27), (32), (36) and (38) on sheet 2764.

(7) Schedule 1, item 24, page 8 (line 16), omit “, detentionetc.”, substitute “warrants”.

(8) Schedule 1, item 24, page 8 (line 17), after “Requesting”, insert “questioning”.

(11) Schedule 1, item 24, page 9 (lines 13 to 29), omit paragraphs (c) and (d), substitute:

(c) if the warrant to be requested is to authorise the person to be taken into custody immediately and brought before a prescribed authority immediately for questioning—that there are reasonable grounds for believing that, if the person is not immediately taken into custody, the person:

(i) may alert a person involved in a terrorism offence that the offence is being investigated; or

(ii) may not appear before the prescribed authority; or

(iii) may destroy, damage or alter a record or thing the person may be requested in accordance with the warrant to produce.

(14) Schedule 1, item 24, page 10 (lines 13 to 37), omit subsections (3B) and (3C), substitute:

(3B) In consenting to the making of a request to issue a warrant authorising the person to be taken into custody immediately and brought before a prescribed authority immediately for questioning, the Minister must ensure that the warrant to be requested is to permit the person to contact a lawyer at any time when the person is being questioned under this Division in connection with the warrant.

(15) Schedule 1, item 24, page 11 (lines 1 to 15), omit subsections (4) and (5), substitute:

(4) If the Minister has consented under subsection (3), the Director-General may request the warrant by giving a prescribed authority:

(a) a request that is the same as the draft request except for the changes (if any) required by the Minister; and

(b) a copy of the Minister's consent.

(16) Schedule 1, item 24, page 11 (lines 17 to 30), omit subsection (1), substitute:

(1) A prescribed authority may issue a warrant under this section relating to a person, but only if:

(a) the Director-General has requested it in accordance with subsection 34C(4); and

(b) the prescribed authority is satisfied that there are reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to a terrorism offence.

(17) Schedule 1, item 24, page 11 (line 37) to page 12 (line 10), omit paragraph (2)(b), substitute:

(b) do both of the following:

(i) authorise a specified person to be taken into custody immediately by a police officer, brought before a prescribed authority immediately for questioning under the warrant and held in custody under arrangements made by a police officer until questioning has been completed;

(ii) permit the person taken into custody to contact a lawyer (as described in section 34U) when the person is being questioned under the warrant.

(18) Schedule 1, item 24, page 12 (lines 11 to 27), omit subsections (3) and (4), substitute:

(3) For the purposes of subparagraph (2)(b)(i), the warrant may specify the end of the period for which the person is to be questioned by reference to the opinion of the prescribed authority that the Organisation does not have any further requests described in paragraph (5)(a) to make of the person.

(4) The warrant may identify other persons whom the person is permitted to contact by reference to the fact that he or she has a particular familial relationship with that person or persons. This does not limit the ways in which the warrant may identify persons whom the person is permitted to contact.

Note 1: The warrant may identify persons by reference to a class. See subsection 46(2) of the Acts Interpretation Act 1901.

Note 2: Section 34F permits the person to contact the Inspector-General of Intelligence and Security and the Ombudsman while the person is in custody, so the warrant must identify them.

(21) Schedule 1, item 24, page 13 (lines 22 to 24), omit paragraph (1)(a), substitute:

(a) the period for which the warrant authorises questioning of the person;

(22) Schedule 1, item 24, page 14 (lines 6 and 7), omit “or detention”.

(26) Schedule 1, item 24, page 17 (lines 3 and 4), omit “or a direction given under section 34F”.

(27) Schedule 1, item 24, page 17 (lines 6 to 10), omit subsection (2), substitute:

(2) Strict liability applies to the circumstance of an offence against subsection (1) that the warrant was issued under section 34D.

Note: For strict liability, see section 6.1 of the Criminal Code.

(32) Schedule 1, item 24, page 19 (lines 23 to 32), omit the note.

(36) Schedule 1, item 24, page 20 (line 22), omit “detained”, substitute “taken into custody”.

(38) Schedule 1, item 24, page 28 (lines 19 and 20), omit paragraph (c), substitute:

(c) a statement containing details of any seizure or taking into custody under this Division;

These amendments before the committee are minor in terms of the number of words, if you like, that they affect, take out or change. It is also fair to say that their significance is far from minor. Of course, substantive amendments will be moved by the opposition later in this committee stage in relation to removing 14- to 18-year-olds from the regime, setting out appropriate questioning times and ensuring access to legal advice. The amendments that are being moved here do ensure that the character of the regime is a questioning regime as opposed to a detention regime.

All in this chamber would agree that our response to the threat of terrorism has to be strong, effective and consistent with our democratic values and freedoms. As the ASIO bill stands, our view is that the government has got that balance wrong. The opposition is persuaded that the intelligence-gathering powers of ASIO should be enhanced, but we are not persuaded that that should be done through a police-like detention regime. ASIO can do its intelligence-gathering job properly, it can gather vital intelligence, without having to detain people for extended periods. I have heard the Attorney-General and others in the government stress that what is proposed in this bill is to ensure that the capacity for ASIO to gather intelligence is maximised.

I have been assured that this bill is about an intelligence-gathering regime. We are very concerned that, as it stands, this legislation may well run foul of the prohibition against arbitrary detention in the International Covenant on Civil and Political Rights. Those who have followed the hearings, the evidence and the submissions before the Senate Legal and Constitutional References Committee would be aware that a very significant number of strong submissions were made to the Senate committee on this issue.

The opposition proposes and supports a questioning regime, not a detention regime. We also insist on a questioning regime with strong protections and safeguards. We think it is appropriate that such a regime be broadly consistent with other questioning regimes employed by Commonwealth and state law enforcement agencies, such as royal commissions, the NCA and state crime commissions. You have to be able to answer the question of why ASIO should have weaker powers to interview people in relation to terrorism offences than those bodies have in relation to corruption or corporate crime. That is an absolutely crucial question that opponents of this bill need to be able to answer.

The first issue in relation to a questioning regime as opposed to a detention regime is: who should initiate the process? In this respect, the opposition believe that the current bill has got it right. We think that warrants for questioning should be initiated by the Director-General of Security, who should seek the Attorney-General's consent to apply for a warrant. The Attorney-General must be given a draft and supporting material. Before giving consent, the Attorney-General must be satisfied that the warrant is absolutely necessary and that questioning the person would be more effective than other methods of collecting intelligence. As far as the opposition are concerned, it is fundamental that this questioning regime should not apply to anyone under the age of 18. Although that matter will be dealt with in later amendments, the opposition strongly believe that children should not be subjected to ongoing questioning by an intelligence agency. Further opposition amendments that deal with the specifics of the questioning regime will be moved later in the committee stage of this bill.

I commend the significance and importance of these amendments to this committee. We believe it is essential that the character of this regime be a questioning regime, not a detention regime. The intent of these amendments is to give effect to that.