Senator ROBERT RAY (7:29 PM) —I would like to address that point before I go to some other issues. I think the point here, Senator Greig, is what is in the mind of the director-general at the time of issuing the warrant. So he has issued one warrant and the questioning period has occurred. You might then argue that there are two new streams of material. Then a second warrant is issued on one of those streams. You are asking whether the director-general can then get a third warrant on the other stream. But, you see, that was in his mind when he issued the first warrant. It was knowledge that he had. So he cannot in fact issue a third warrant on that particular matter because it was already in his mind when he issued the second. I think we can rule that particular one out.

I have not entered this debate generally, but I have followed it from afar. I want to make a few general points about the particular section of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 [No. 2] that we are considering at present. First of all, I recommend that members of the committee go and get a copy of the Joint Intelligence Committee report published 15 months ago. I want you to actually read through that report and tell me what is not now in this bill. Virtually everything that that committee came up with unanimously 15 months ago has at last been adopted in this bill. I take a bit of pride in that. The Joint Intelligence Committee was able to come up with a unanimous report—I think that is good. I recognise that it is not a libertine left organisation. Most members of the Joint Intelligence Committee have a pretty mature view of foreign affairs and defence issues, one would have to concede. In other words, they are all pretty right wing, including me. But that does not say that you would necessarily be in favour of draconian legislation. It does not necessarily follow that the two should go one after the other.

This bill has come a long way in 18 months. Yesterday, of course, we were accused—in one of the more excitable moments of this debate—of not having read the bill and, hence, of not being able to understand that rolling warrants were possible. I think we did read the bill; we just did not interpret it in that way. I think that is the fairest way of putting it. We took at face value comments by the Attorney-General and ASIO's legal adviser and a range of other statements that you could not have rolling warrants. It was only when the minister, acting with all propriety here last Thursday morning, explained that you could that that was a new interpretation of the bill. Even in reading the explanatory memorandum today, I still could not find reference to the legitimacy of rolling warrants. I still cannot. It was only the minister's interpretation of that—which a court would eventually take into account—that allowed that problem to come to light, and it meant that it had to be dealt with over the last few days.

It was never intended to have rolling warrants, but the ground has shifted over the last few months. Originally, when the seven-day period came down, there were still four warrants required: the first one for 48 hours, the second and third for 48 hours and the fourth one for only 24 hours. When all the other protections came into the bill, the government said: `Let's not have those other three warrants. Let's just have one warrant.' That is a reasonably fair thing to do. But if it were in their minds then to be able to roll those warrants over and over again, why wouldn't we have preferred 48-hour warrants? Of course we would have preferred them to seven-day warrants that could be rolled over one after the other. In all of this, it was never intended to immunise someone by just having one warrant issued against them. That was never the intention and I cannot understand how anyone could say that it was the intention. I do not believe in the moratorium period because, if the legislation is legitimate and if the motives are legitimate, a moratorium time is just an artificial device and, in urgent circumstances, it could lead to disaster. So I think you can put the moratorium aside.

What these particular amendments do—and they take us on a different path than the one we were on last Thursday—is specify what has to be taken into account for a second warrant. All the information that pertained to the first warrant has to be produced to the Attorney-General and to the issuing authority that hands out the warrant. In addition to that, it can only go on additional or materially different grounds. I think that is a very important thing that the government have picked up in their definition because it does change the nature of it—it does go to the question of immunisation. You could have circumstances—not very often but you could have them—where, at the 23-hour and 48-minute mark of questioning of one of these suspects, they cough up something entirely different to take the heat off themselves. Twelve minutes later, you cease the questioning and you cannot pursue it any further if no second warrant can be issued. That is an intolerable position, and I do not think we could tolerate it.

People say, `This is a wide open to abuse.' I do not think they recognise the amount of hurdles here. We have got almost as many hurdles as the Grand National Steeplechase and I do not think we can put many more in. The first assumption the critics make of this is that the director-general is a crook and does not have any decency. The current director-general has proved exactly the opposite. He has proven to be a transparent director-general with a humanitarian outlook who has cooperated with every parliamentary committee under the sun. He has been very open in his briefing and has proved to be a person of great integrity. But the critics could say, `Maybe one day that will change,' and so they are right to look for further protection. The further protection is that, normally, attorneys-general have some integrity in this country. If you go back over the last 20 years, you do not find many people reflecting on the integrity of attorneys-general. But even if this does not become a moral issue, it is a pretty dopey Attorney-General who would take a political risk and start getting warrants issued on invalid grounds. Why would they? Where is their motive for that, other than that they want to leave office very rapidly? It just stands against the logic of it.

But presume that at some stage we have a dubious director-general and an Attorney-General who is a bit weak. You have still then got to get past the authority that issues the warrants—a federal magistrate or a federal court judge. You do not know which one of those it is going to be. To get all three of those stars in alignment in your conspiracy theory is quite difficult. Then you get your fourth defence: you get a retired judge, who owes nobody anything, as the prescribed authority. Then you get your fifth defence: at any point the IGIS can just sit in on any of these interviews and supervise them by his very presence. The sixth defence—at last, thank goodness—is that the person taken into the interview can have a solicitor to give them advice all the way through the process. But I say to Senator Brown, through you, Mr Chair: that did not satisfy me at all.

The one thing that really worried me about all this was how much of the classified material was entitled to be put before the issuing authority. So you put in the final piece of the jigsaw: you get IGIS to review every issuing of a second warrant. Under the IGIS Act, that person has access to all the material, all the current files, everything. Every time a second warrant goes out, IGIS will investigate it and make sure that it is fitted to the legislation, that it is additional material or materially different material and that all the other features have been abided by. The Inspector-General of Intelligence and Security will put that in his annual report. To me, that is the biggest safeguard in this whole process of second warrants. I am very pleased that the government has given thought to this. The government's view was that he could have done that anyway as it is already covered in other acts. However, to put it specifically in this act shows good bona fides. It means that people can be assured that every second warrant will be thoroughly examined.

The conspiracy theorists might say: `It's in an annual report. How do we know that we will ever get to know about it?' Firstly, under section 35 of the IGIS Act, two versions of the annual report come out, one declassified and one classified. The declassified annual report is tabled in parliament. If you go back and look at IGIS reports, references are made to various disputes and issues. Some material is deleted from those reports on security grounds. For six years I have had the unique experience of being able to read classified and non-classified reports on a range of security agencies. On none of those occasions could I assert that material was deleted from a classified report into a declassified report for political reasons; it was always done for security reasons. Two or three years ago, with the chairman of the committee, David Jull, I even had the unique opportunity of looking at a couple of classified ASIO reports and the declassified reports so we could satisfy ourselves that there had been no change in policy. Guess what? Every deletion from the classified report could easily be justified. There was no tricking it up or political censorship. It was done for valid and good reasons. Another defence in all this is that the unclassified version goes to the Leader of the Opposition. When you put the whole picture together, what we have here in terms of a second warrant is a whole range of hurdles and protections which I think are very encouraging.

The government has added another clause so that no warrant can be issued whilst previous warrants are extant. That is a very good move because there is a concern that while someone is being held under one warrant, a process could go ahead and another warrant could be obtained. A few things have been said about that. Mention was made of eroding key rights. The implication is that in some ways we are just acting like expedient pragmatists not worrying about historic rights. That criticism does not bother me. I have lived with that all my political life. All my political life the Left of the Labor Party have accused me of being a pragmatist and of having no principles et cetera. You learn to adapt to that. I will tell you what: if you want to go back to the period 1988 to 1990 and look at the changes I made to the Migration Act and to things like ministerial discretion, you can tell me who is the principled person and who is the pragmatist.

The other thing that was said was that the ALP has just rolled over and the government is pretty happy. I did hear a rather cross Attorney-General on AM yesterday. I did not get the impression that we were rolling quite as quickly as he might have liked, but that is a matter of opinion. It is easy to scaremonger on this bill. When the five security bills came down 12 to 18 months ago we were all deluged with emails and protests. We were accused of selling out and all those things. I have not heard from one of them since about those bills. Let me not deceive the committee: the ASIO bill is a further step to curtailing civil liberties. We have to say that. But what we are trying to balance off here are the rights of potential victims with the rights of citizens and others. Getting that balance right is absolutely essential and that is one of the reasons we have put a sunset clause in the bill. If in any way it leads to abuse or large numbers of warrants—and remember that the numbers of first and second warrants have to appear in the annual report so we will know how many have been issued—the sunset clause will go a long way towards keeping the government honest. The government knows that if it abuses this it will not get the legislation renewed in 36 months time. Where is the motive for a government to abuse these procedures? I really cannot see that.

However, as I said, we also have to think about the rights of citizens. The changes proposed by the government and, we admit, negotiated with the opposition at some length and with a fair bit of argy-bargy, represent the best possible outcome from an interpretation last Thursday that would have seen this bill sunk. I commend the amendments to the committee, especially amendment (6) that goes to the role of IGIS in this. That is the ultimate protection that will ensure that these new definitions are not abused.