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Thursday, 12 December 2002
Page: 8092


Senator FAULKNER (Leader of the Opposition in the Senate) (3:58 AM) —The opposition will be opposing the government's motion that the Senate not insist on its amendments. The government's unamended bill is unacceptable. The Senate amendments are sensible, they are workable and they are essential. They give the government a strong compulsory questioning regime for ASIO with appropriate safeguards. This regime and the safeguards are consistent with well-established standards which apply to police investigations and questioning by bodies such as royal commissions, ASIC, ICAC and other state crime commissions. The bill as amended provides extra security in the community by giving ASIO further powers and it also provides sensible safeguards for those who are subject to the new questioning regime.

In moving our amendments, the opposition have sought to achieve four key objectives. Firstly, we should not create a detention regime for nonsuspects; it should be a questioning regime similar to those used by other investigatory bodies. Secondly, the regime should not apply to children under 18. Thirdly, people being questioned should have access to a lawyer of their choice. Fourthly, there should be a sunset clause.

The Attorney-General said yesterday morning that the opposition's amendments were nothing more than pedantry and bureaucratic blockages. Today he is claiming that those same amendments have made this bill unworkable and unconstitutional. You actually cannot have it both ways. Let me repeat: This is a workable model. It has the support of three parliamentary committees, including government members of those committees. It has the support of hundreds of witnesses and dozens of eminent legal authorities.

I want to examine this claim of unconstitutionality. The opposition has proposed that the prescribed authority comprise in the first instance retired judges and, in the second instance, if there are insufficient retired judges, serving state and territory judges and finally, if there are insufficient numbers in those two categories, senior members of the AAT. We understand that there are approximately 160 retired judges who meet the criteria for acting as a prescribed authority and that there are approximately 20 presidential members of the AAT. There is clearly no constitutional impediment in either of these categories. The government's claim of unconstitutionality therefore now relates, we hear, to the appointment of judges in the second of those three categories; that is, serving state judges.

If there is a valid claim about constitutionality, the government should release the legal advice on which they base this claim. The parliamentary secretary has tabled a letter sent by Mr Williams to me a little earlier today. The Attorney-General has in fact provided me with his interpretation of advice from Mr Robert Orr QC, but he has not actually released Mr Orr's advice. We say that it is appropriate that that advice be laid on the table because the opposition has consulted Australia's leading constitutional experts, including Gavan Griffith QC, on this issue. They are unanimous, strong and unequivocal in their view that the prescribed authority model that we have proposed is both constitutionally sound and workable. I have publicly released Mr Griffith's opinion and I challenge the government to publicly release Mr Orr's contrary advice.

We have a situation where the government claims that this particular provision of the bill is unconstitutional and that the bill as amended is unworkable because of this alleged constitutional defect. I say quite clearly to the Senate that I believe that claim is nonsense. If there were a scintilla of truth in the suggestion that there may be a constitutional vulnerability with the amended bill, there would be a simple mechanism for avoiding it. The states could refer the relevant power to the Commonwealth, as they are in the process of doing in relation to a whole range of counterterrorism matters. In this case, the government has argued that the referral of powers is not in fact essential but is for abundant caution.

It is not unusual or uncommon for powers to be referred in this way. But again, even if referral is considered impractical by the government, and in the exceptionally unlikely event that a constitutional challenge were successful, let us be clear: only one small element of this bill would be struck out, and that would be the appointment of serving state judges as the prescribed authority. This, of course, would leave the government with the option of appointing judges from the remaining two categories: retired judges or senior AAT members. As I have said, there are at least 180 people in these categories— surely ample for the government's purposes. There is no way at all that a constitutional problem with state judges would stop this bill working.

The government, on this issue, is clutching at straws. But I believe that this parliament would take seriously any serious suggestion about a constitutional defect. I say: put the advice on the table and let us have a close look at the advice. I am sure that, if there were a weakness, this parliament would act appropriately. But let us see the government do what the opposition has done: put clear advice on the table. I challenge the government to table Mr Orr's advice. I say that the Senate has got the balance right and that we should not be changing this legislation now.

This afternoon we witnessed, I thought, an appalling performance by the Attorney-General, attempting to justify the government's decision to reject the Senate amendments. I do not think anyone present at the Attorney-General's doorstop was persuaded by the incoherent and disjointed arguments that he put forward. I feel sorry for the Attorney-General. I believe that the reason for his abysmal performance is that he himself is not persuaded of the legal or political merit of the government's decision to play hard ball on this bill. He knows that the decision to reject the amendments and to use this bill as a potential double dissolution trigger is purely a political one. It is purely a political decision. At the best of times, the Attorney-General appears incapable of running an argument, but when he is running purely political arguments, particularly political arguments that he does not believe in, people cringe with embarrassment at the sort of performances that he puts in.

The only substantive argument the government has attempted to make in defence of its claim that the bill is unworkable is the weak constitutional argument that I have addressed. It is clear that the government has made a political decision to reject the amended bill. It cannot then be serious about providing ASIO with the necessary tools to track down terrorists. It is just not serious about that. It is not serious enhancing the security of Australians.

The Attorney-General said on the radio this morning that, if the opposition's amendments were to succeed, it would be a Labor bill, not a government bill, and therefore the government was not interested in it. All I can say is that it is just as well that the opposition takes a more responsible approach to legislation, otherwise we would be rejecting all government bills that come before us, simply on the basis that they are government bills. That is the same logic that the Attorney-General applies to this legislation. I say this: legislation about national security should not be about political point scoring; it should be above political point scoring. This bill falls squarely into the category that should be above petty political point scoring by anyone—government, opposition or anybody else.

On 20 November the government put Australia on high alert against terrorist threats. The government said, `This danger will extend over the Christmas holidays and into the new year.' The opposition supported the issuing of those warnings, and we have been determined to play a positive role in revising and improving this legislation. This bill is about securing Australia from terrorists and terrorist activity. This bill is about giving ASIO the power under a questioning warrant to collect information from people who may know something about terrorists. It will enable ASIO to compel people to answer questions about terrorist activity. This is a power that ASIO does not currently have and it will be a very significant addition to ASIO's intelligence collection powers. Importantly, the Director-General of ASIO has said on a number of occasions that the bill must instil community confidence. Introducing powers modelled on a secret police state, as the government has tried to do, will not instil broad community confidence in the government of this nation.

It is time Mr Williams got serious on this issue. It is time he accepted that the government's model is unacceptable to the Senate and, I believe, unacceptable to the Australian people. It was unacceptable to every parliamentary committee that examined the legislation. It is unacceptable to the legal profession in this country. As I have said, I believe it is unacceptable to the Australian community. What is broadly acceptable is the model that we have before us. With appropriate safeguards it will enhance ASIO's ability to investigate, and counter, terrorist threats. It will also save the government from the ignominy of being responsible for the harshest set of detention laws in the Western world.

If the government spurns this compromise, it will be denying ASIO significant new powers to investigate, and counter, terrorist threats. If the government votes against this amended bill, it will abrogate its responsibilities to the Australian people. I believe it will be a reprehensible dereliction of duty if the government does not support this amended bill. But it will show Australians again that this government is not interested in community security and that it is not interested in giving ASIO the powers it needs. Unfortunately, if the government does not accept the Senate amendments, it will show that the Howard government is only interested in playing politics. (Time expired)