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Tuesday, 13 May 2003
Page: 10583

Senator IAN CAMPBELL (Parliamentary Secretary to the Treasurer) (3:51 PM) —I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 will strengthen Australia's counter-terrorism capabilities by enhancing ASIO's investigative powers.

The horrific and tragic events of September 11 marked a fundamental shift in the international security environment.

The more recent tragedy in Bali brought the realities of terrorism to our doorstep.

Those inexcusable acts of atrocity showed us no country is safe from the devastation terrorist acts inflict.

And the current security environment makes passage of this Bill more important than ever.

The Government has consistently taken a strong, decisive and balanced approach to strengthening Australia's counter-terrorist capabilities.

On the legislative front, the Government has enacted a package of counter-terrorism legislation to ensure that Australia, through our law enforcement and intelligence agencies, is in the best possible position to protect Australians against the evils of terrorism.

This Bill is part of that legislative package—its primary purpose is to protect the community.

Let that be clear.

In developing this legislation, the Government has been conscious of the need to protect our community from the threat of terrorism without unfairly or unnecessarily encroaching on the individual rights and liberties that are fundamental to our democratic system.

In the process of developing this Bill, the Government has done everything it can to ensure concerns raised about the Bill have been taken into consideration.

The Government has included significant safeguards in the Bill to ensure rights and liberties are appropriately protected.

And the Government has made significant amendments to the Bill to address concerns that have been raised.

For example, in an effort to achieve Opposition support for the Bill we agreed to a 3-year sunset clause, despite the fact that we do not believe that a sunset clause is appropriate.

The Government's position on this Bill has always been consistent and clear.

Our intelligence agency needs this Bill to give it the tools it needs to help fight terrorism.

The Government is committed to protecting the Australian community against terrorism.

And the Government is committed to providing these tools.

But we are not prepared to accept amendments that will render the Bill impotent or unworkable.

Our intelligence agency has indicated that it would rather no legislation at all than a fig leaf.

We intend to do whatever we can to deliver workable and appropriate legislation.

Scrutiny of the Bill

Let's not forget that this Bill has been subject to the highest levels of scrutiny.

It was considered by three parliamentary committees.

And the reports of those Committees were invaluable in assisting the Government to refine the Bill.

For example, in accordance with recommendations of the Parliamentary Joint Committee, the Bill will not apply to anyone under 14.


The Bill empowers ASIO to seek a warrant which allows the detention and questioning of persons who may have information that may assist in preventing terrorist attacks before they occur.

In order to prevent potential terrorist attacks, we must enhance the powers of ASIO to gather relevant intelligence in relation to terrorism offences.

While ASIO is empowered to seek search warrants, computer access warrants, tracking device warrants, telecommunications interception warrants and to inspect postal articles, ASIO is not currently empowered to obtain a warrant to question a person who has information about a potential terrorist attack.

The Bill establishes a warrant process to allow ASIO to question a person who may have important information relating to a terrorist attack.

A person subject to a warrant may be detained by police for up to 48 hours to allow ASIO to question them.

The Government recognises the need to do everything it can to ensure the security of the community while not encroaching unnecessarily on individual rights and avoiding the potential for abuse.

The Government has done everything it can to achieve those aims.

It must be remembered that these warrants are a measure of last resort.

It is anticipated that they will be used rarely and only in extreme circumstances.

The Bill contains a significant number of hurdles that must be achieved before a warrant is issued.

In order for ASIO to detain and question a person, the Director-General of Security must obtain the consent of the Attorney-General before seeking a warrant from an `issuing authority'.

The Attorney-General must be satisfied that there are reasonable grounds for believing that issuing the warrant will substantially assist the collection of intelligence that is important in relation to a terrorism offence and that relying on other methods of collecting that intelligence would be ineffective.

If the warrant being sought requires a person to be taken into custody immediately and detained, the Attorney-General must also be satisfied of a number of conditions.

Importantly, the Attorney-General must be satisfied that the person may alert another person involved in a terrorism offence of the investigation, or the person may fail to appear before the prescribed authority, or the person may alter or destroy a record or thing that they may be requested to produce.

Without this provision, terrorists could be warned before they are caught, planned acts of terrorism known to ASIO could be rescheduled rather than prevented, and valuable evidence could be destroyed.

If the warrant concerns a person between the ages of 14 and 18, the Attorney-General must also be satisfied that it is likely that the person will commit, is committing or has committed a terrorism offence.

An `issuing authority' will either be a federal magistrate, a federal judge or another authority set out in regulations.

In the extraordinary situation of a warrant resulting in a person being detained for more than 96 consecutive hours, only a federal judge or another authority specified in regulations can be the issuing authority.

An `issuing authority' may only issue a warrant if it has been requested in accordance with the proper procedure and it is satisfied that there are reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important to a terrorism offence.

A warrant issued under the Bill will require a person to appear before a `prescribed authority' to provide information or produce documents or things.

A prescribed authority will either be a person who has previously been a judge of the High Court, Federal Court, Family Court, Supreme or District Court of a State or Territory.

If there are insufficient people in this category, the Attorney-General may appoint a person currently serving as a judge in a State or Territory Supreme Court or District Court, or, as a final choice, the President or Deputy President of the Administrative Appeals Tribunal.

The warrant may request that a person appear at a particular time or order the person to be taken into custody to be brought before the prescribed authority.

If a person is to be taken into custody immediately and detained, this will be the responsibility of the police, normally the Australian Federal Police.

In some situations, a person with highly relevant information may refuse to volunteer it.

For example, a terrorist sympathiser who may know of a planned bombing of a busy building, but who will not actually take part in the bombing, may decline to help authorities prevent the attack.

In order for the new powers to be effective, penalties must apply to those who fail to answer questions accurately or produce documents or other requested things.

The maximum penalty for the offences will be five years imprisonment.

A person will not be able to decline to give information or produce a document or thing on the ground that to do so would tend to incriminate them.

However, evidence obtained as a result of the questioning will only be available for use in offences related to non-compliance with a warrant issued under the Bill.


The Bill contains a number of safeguards to ensure that ASIO's powers are exercised reasonably and that a person is treated fairly whilst in custody or detention.

Questioning of a person under a warrant will always take place before a prescribed authority.

When a person first appears before the prescribed authority for questioning under the warrant, the prescribed authority must explain what the warrant authorises ASIO to do, the period the warrant is to be in force and the possibility of facing criminal sanctions if the person does not cooperate.

It must also advise the person that they have the right to seek a remedy from a federal court in relation to the warrant or their treatment under the warrant and this information must be provided when the person first appears before the prescribed authority and at least once in every 24 hour period subsequently.

A prescribed authority may also give directions under the warrant regarding the detention of the person, including permitting the person to contact another person.

The directions must be consistent with the warrant and any changes to the warrant approved by the Minister in writing.

The Bill includes a special regime for questioning young people. Warrants cannot be issued in relation to a person who is under the age of 14.

A warrant may be issued in relation to young people between the ages of 14 and 18 only if the Attorney-General is satisfied on reasonable grounds that the person will commit, is committing or has committed a terrorism offence.

Access to a lawyer can not be delayed for young people.

And young people questioned under a warrant will have the right to contact a security-cleared lawyer and to have a parent, guardian or other representative present at all times.

All persons detained under a warrant will have the right to contact an `approved lawyer'.

All warrants authorising the taking of a person into custody and detaining them must provide that the person may access an approved lawyer.

An `approved lawyer' will be a legal practitioner of at least 5 years experience who has been approved by the Attorney-General after undergoing a security clearance.

In exceptional circumstances, access to an approved lawyer may be delayed for up to 48 hours.

In order to delay access to an approved lawyer, the Attorney-General must be satisfied that it is likely that a terrorism offence is being or is about to be committed and may have serious consequences.

However, after 48 hours, all persons will have the absolute right to contact an approved lawyer.

A person subject to a warrant has a right to complain to the Inspector-General of Intelligence and Security (IGIS) in relation to ASIO, and to the Commonwealth Ombudsman in relation to the Australian Federal Police.

The IGIS will be empowered to advise the prescribed authority of any concerns he or she may have about the legality or propriety of ASIO's actions. The prescribed authority may direct that the questioning be suspended until it is satisfied that the IGIS's concerns have been addressed.

The person must also be treated with humanity and with respect for human dignity, and must not be subjected to cruel, inhumane or degrading treatment, by anyone exercising authority under the warrant or implementing or enforcing a direction of the prescribed authority.

In addition, the Director-General must ensure that video recordings are made of a person's appearance before a prescribed authority for questioning and any matter or thing that the prescribed authority directs to be recorded.

There are significant penalties for officers who do not follow the stringent processes and safeguards in the Bill.

Additional safeguards

During debate on a previous version of the Bill, the Government moved a number of amendments to the Bill that added to the already extensive safeguards contained in the Bill.

The Bill now clarifies that an ordinary or frisk search of a person must, if practicable, be conducted by a person of the same sex.

Significant amendments were made to the `prescribed authority' provisions.

For example, the Bill now explicitly requires the prescribed authority to explain the warrant to the person being questioned, outline that person's rights, and explain the role of the prescribed authority and the role of every other person present during the questioning.

There are new safeguards to ensure that an interpreter must be provided at the request of the person being questioned.

The interpreter will also be provided at the request of the prescribed authority.

The Bill now requires that there be a written statement of procedures which must be followed in the exercise of authority under a warrant.

And no action can be taken under a warrant until these procedures have been adopted in accordance with the requirements of the legislation.

If these procedures are contravened, a person will have the right to lodge a complaint with the Inspector-General or the Commonwealth Ombudsman.

The Bill includes important measures to ensure transparency and accountability in relation to the exercise of powers under a warrant.

ASIO's unclassified annual report must include a statement of the total number of requests made to the Attorney-General and to issuing authorities for warrants during the year and the actual number of warrants issued during the year.

The annual report must also include the number of warrants issued during the year that require a person to appear before a prescribed authority and the number of warrants issued that authorised a person to be detained.

And ASIO will now be required to publish (in the Organisation's unclassified report to Parliament) statistics including the number of hours each person appeared before a prescribed authority for questioning under a warrant.

The Parliamentary Joint Committee on ASIO, the Australian Secret Intelligence Service and the Defence Signals Directorate will be asked to review the new provisions and provide a report on their operation.

The Government is mindful of the need for strong laws to protect our national security, yet preserve individual rights.

The Bill achieves those aims.

This Bill was not created on a whim but in response to identified needs.

Australia's profile as a terrorist target has risen and we remain on a heightened security alert.

In November 2002, the Government issued a security alert in response to credible information of a possible terrorist attack in Australia at some time in the months following November.

Our interests abroad also face a higher level of terrorist threat.

Terrorism is not like ordinary crime.

The way terrorist networks are organised and the destruction that acts of terrorism cause, distinguish terrorism from other types of crime.

The Howard Government takes very seriously its responsibility to do everything it can to protect Australians and Australian interests against the threat of terrorism.

That is why this Bill was developed.

That is why the Government has cooperated as far as is possible in ensuring the legislation addresses legitimate concerns without making the Bill unworkable.

That is why the Government pursued discussions with the Opposition for months in order to find a way to negotiate passage of the Bill.

It is regrettable and alarming that, in December last year, the Opposition chose politics over community safety, and attempted to amend this legislation in a way that would have made it unworkable.

The Opposition denied the community vital protection at a time of continuing grave uncertainty in the international security environment.

And that uncertainty has not abated.

This Bill is a decisive, yet measured response to the new security environment.

When the Bill is enacted, we will have appropriate laws to protect the community from terrorism while ensuring that the rights of individuals are not unnecessarily impeded.

I call on the Opposition to support this vital legislation and not delay its passage any longer.

Debate (on motion by Senator Mackay) adjourned.

Ordered that the resumption of the debate be made an order of the day for a later hour.