Senator NETTLE (4:41 PM) —In rising to speak to Senator Brown's motion, I concur with his comments about this being the first test for the new Leader of the Opposition. Having heard now from the Labor Party in the Senate that they intend to stand shoulder to shoulder with the Howard government by giving more powers to ASIO to take away further civil liberties from Australian citizens, it is a test that the opposition, under their new leader, have clearly failed.

This legislation is something that many of us in here would have predicted. We had the debate on the primary piece of ASIO legislation. It was the debate that others have talked about. It went to two full Senate inquiries, and the community was closely engaged in and closely concerned about that legislation. Once that legislation was passed and came into law, with the support of the opposition, it was unsurprising that as time went on the new Attorney-General said: `We did not give ASIO quite enough powers. We need to increase the powers that we already gave to ASIO, unprecedented powers.' We have seen around the world in response to September 11 security agencies having been given greater powers. They were given those powers by the government and the opposition some time ago. Now more legislation is coming forward because ASIO were not given quite enough powers and should be given more powers.

Let us remember that the legislation that has already been passed in the parliament is unprecedented in that it detains people who are suspected of being involved in criminal activities. This is not about targeting people who are reasonably found to have committed a crime before a court of law. The legislation that has already been passed into law is about detaining people who are suspects. They have not been found before a court of law to have been seen to have committed an offence. They are just suspected. This is under the legislation that has already been passed to detain these people for seven days.

I want to speak about the proposal in this legislation to double the interrogation time for people who come from a non-English-speaking background. There have been comments made in the media and from a variety of parties in the chamber here now that it is appropriate for us to detain people from a non-English-speaking background for twice the amount of time for interrogations. These comments miss the point of the detention. The reason for detaining someone for twice the period of time is not to give them extra time to explain their situation. This is an interrogation carried out by ASIO about activities that they have been involved in. It is not a discussion with somebody about what they may or may not have been doing. It is an interrogation by security agents. To suggest that they are giving somebody twice as long to state their case or to put forward their situation is to miss the point behind the detention of people suspected of being involved in any criminal activity.

When the primary ASIO legislation was first introduced, many comments were made by various ethnic communities about the impact of the legislation on their communities. During the Senate references committee inquiry that looked at this legislation, the Chief Executive Officer of the Australian Federation of Islamic Councils said to the committee:

It appears that their predictions have come true and that the first people to have been targeted under this legislation have been Muslims living in Australia. These ideas were put forward at the time and it appears that their predictions have come true in how this legislation has been used to date. Comments were also made by the Islamic Council of Australia during the debate on the previous ASIO legislation. The council felt that the new laws would be used to discriminate against individuals from the Islamic community. They said:

These concerns were put to the parliament before the previous round of ASIO legislation was debated. And some of these concerns have come true. These fears that they would be the first communities to have this legislation used against them have come true. I spent the weekend at a conference that a range of ethnic communities attended. We were talking about this legislation and about their predictions that the legislation will firstly be focused on them having come true. Voices in the community have been relating their concerns to senators, and we heard Senator Greig, the previous speaker, read out examples of emails he has received from constituents about their concerns with the legislation. The Greens proposal is to allow those concerns to be heard by the Senate and for these voices and their legitimate concerns to be raised and to be addressed as part of the public debate and the parliamentary debate on this legislation.

These issues have been raised by a raft of different people. Indeed, on 27 November, University of Sydney Associate Professor Don Rothwell raised another issue in relation to the doubling of ASIO's interrogation time for people from non-English-speaking backgrounds. He said that doubling ASIO's maximum questioning period for those whose first language is not English will breach article 26 of the International Covenant on Civil and Political Rights. Article 26 states:

Associate Professor Rothwell was quoted in the Sydney Morning Herald as saying:

These are opinions being put forward about this particular ASIO amendment. This amendment has passed through the House of Representatives and has been rubber-stamped by the Howard government. Now the government is proposing to bring it on for debate in the Senate tomorrow. We had comments from a range of different parties before the legislation had even been introduced into the House of Representatives, saying, `Yes, that's fine. We'll sign off on that legislation.' We are now hearing genuine concerns from associate professors such as Don Rothwell, from the University of Sydney, saying that we may well be breaching international conventions to which we have signed on. By doubling their interrogation period, we may be discriminating against people who do not have English as their first language. Yet what we are hearing today from the opposition, with the new Leader of the Opposition leading the charge, is: `That's okay. Let's just let this legislation go through to the keeper. Let's not see the Senate play the role of a house of review. Let's not see the Senate provide the scrutiny or allow the public to voice their concerns around this legislation so that these issues can be examined.' That is what we are hearing from the opposition today in the Senate.

There are also concerns that another part of the International Covenant on Civil and Political Rights may well be breached. Article 9.1 of the International Covenant on Civil and Political Rights states:

Questions need to be raised and need to be answered by the government. Does the doubling of the maximum amount of time that a person can be questioned and possibly detained under an ASIO warrant simply because an interpreter is present at any time while a person is questioned under an ASIO warrant make it more likely that that person's detention is arbitrary under the International Covenant of Civil and Political Rights? This question needs to be answered by the government, and this is the reason the Greens propose that we should send this legislation to an inquiry.

To date the government has not made any clear statement that I am aware of about how these proposed amendments will impact on children whom it seeks to be able to detain under the ASIO legislation—children between the ages of 16 and 18 who need access to an interpreter. Should ASIO be able to question and interrogate those children for up to 48 hours? These are the questions that we need to ask, and the time for asking those questions is not in the committee stage of this debate tomorrow, where the government has already signed off on an agreement with the opposition to pass this legislation without addressing these concerns, without hearing the concerns from the community and without putting up their arguments as to why we should or should not proceed down this path of taking away further civil liberties.

There are many questions that still need to be asked—for instance, about increases in the maximum questioning time that will operate once an interpreter is present at any time whilst a person is being questioned under the warrant. Does the presence of an interpreter facilitate or impede questioning? Should the bare fact that the interpreter has been present at some stage during the questioning process trigger a potential doubling of a person's questioning time, irrespective of how long the interpreter has been present, whether questioning has been conducted through them or whether their presence has facilitated or impeded the questioning process? Will the amendments mean that people will be less likely to ask for an interpreter if they need one? Will the amendments mean that an interpreter will be provided more frequently, especially given the fact that the doubling of the maximum questioning time will be triggered if an interpreter is present at any time during the questioning under the warrant? And does the doubling of the maximum time of questioning when an interpreter has been used, if combined with the detention under the warrant, amount to punitive detention of the sort that requires judicial sanction under the Commonwealth Constitution? These are legitimate questions that need to be answered and on which we have not heard responses from the government.

Hopefully we will hear that during this debate, because the time to ask these sorts of questions is not when we are debating the legislation in the committee stage—when the government has already received agreement from the opposition to pass this legislation through. We need to be hearing these voices—and the concerns that the opposition voiced previously to say they did not want this legislation to be delayed. They have been caught in that trap before, as the Senator Greig explained previously. The opposition has allowed the government to target and pressure them over not passing legislation, trying to put onto their shoulders the concerns that they will be responsible for anything that should occur. Nothing did occur, and the legislation was not used until very recently. The opposition should not fall into that trap again: handing away civil liberties simply because they are scared, simply because they are not prepared to stand up and say that the civil liberties of Australians must be defended. We must not let the politics of fear, division and insecurity force us down a path where we hand away the civil liberties of Australian citizens. That is the challenge to the opposition, and today we have seen the opposition, under their new leader, Mr Latham, comprehensively fail that test.

The Greens are making the most reasonable of requests. Let the constitutional issues that have been raised—are we breaching international conventions, how are these issues going to be raised and how are they going to be addressed in the legislation?—be discussed in the Senate where the appropriate debate occurs, with public involvement and public consultation. Let us not just shut down the debate and say to the government, `Sure, no worries. Let's pass your security legislation through.' If you find out later down the track that perhaps you did not give ASIO quite the powers they wanted, bring on another piece of legislation after that from the new Attorney-General to say, `Let's increase ASIO powers because we're simply not getting what we want,' with no justification provided as to why this needs to be increased. We did not hear in the answers from Minister Ellison during question time any reasons as to why we need to increase this legislation, yet we have seen the opposition just turn around and say, `No worries. Let your legislation through.' This is not acceptable. We should be sending this to a Senate inquiry as the Greens are proposing in the Senate today.