Senator ROBERT RAY (11:51 PM) —Earlier today the government presented in this chamber its response to the review by the Parliamentary Joint Committee on ASIO, ASIS and DSD—now the Parliamentary Joint Committee on Intelligence and Security—of the effectiveness of division 3 part III of the Australian Security Intelligence Organisation Act. Typically, this very important response was not debated in this chamber. It just goes back to the fact that there is rarely a rational distribution of time in this chamber. We wasted 10 minutes on a mindless Greens notice of motion, we have had notices of motion read out—it is typical that this parliament often wastes time on trivia and misses some of the more relevant debates.

When this legislation was originally introduced, it was, to say the least, controversial. It installed a very tough regime, but it was all about the collection of intelligence, not about the collection of criminal evidence. I have to say that the original legislation, as it was presented to the parliament, was the most abysmal I have seen in my time in the Senate. This was basically because citizens could be detained for an unlimited amount of time, they were denied legal representation, they were not protected from self-incrimination, 10-year-old girls could be strip-searched—I could go on and on about the faults of the bill.

However, that bill was reviewed by the joint intelligence committee and by the Senate Legal and Constitutional Legislation Committee, and was thoroughly reviewed by my colleague Senator Faulkner. What emerged from the negotiations after those two reports and the efforts of my colleague was a piece of legislation most of us could live with. What emerged was tough but balanced legislation, legislation that incorporated both scrutiny and checks and balances.

One commitment was to review the legislation within three years, a task that has now been completed by the joint intelligence committee. What did we find? We found that the new regime has been used sparingly, with not one detention warrant issued in three years. We found that the prescribed authority has conducted its proceedings with fairness and that ASIO has used professional interviewers. We have concluded that this is a valuable tool in gathering intelligence to prevent terrorist acts.

Some shortcomings in the system have been found and recommendations made accordingly. It is pleasing to see that the government has picked up many of the recommendations, either in whole or in part. Before I turn to those, let me voice two concerns. Firstly, I remain concerned at the role of state police in all these activities. It is essential that state police be involved. More often than not they are quite valuable in tracking down the people to be interviewed. But they also sit in on the proceedings of the prescribed authority, and there is some evidence that their role is not as it should be.

Most people would remember that in this legislation derivative use is not banned. We worry about the fact that the police make suggestions to the ASIO interviewers to ask questions about criminal matters, not intelligence matters, and then the police can make a derivative use of the evidence gathered there as a lead to go and look for other evidence. They cannot use the statements in a judicial proceeding, but they can gain knowledge from them, because if a person refuses to answer a question that may incriminate them from a derivative use point of view they are subject to five years in jail. I would hope that a very close eye is kept by the government on this potentiality rather than reality into the future.

The second problem I have is that, within the act, there is a provision that the report of the joint intelligence committee must be cleared by the relevant agency and the relevant minister. I do not challenge that in any way. I just think that this particular agency, ASIO, takes an overbearing attitude to their censor’s role and sometimes their suggested amendments do not comply, in my view, with the requirements of the legislation; they go beyond it. I have detected a slight change of attitude in the last year in the way ASIO responds to these matters, and I would urge the Attorney-General to closely monitor it, because you want to have a responsive agency.

Having said that, I would like now to turn to one or two of the recommendations. I think it is excellent that the government has accepted the right of individuals to appeal to the state Ombudsman. This was not covered off in the original legislation. Because state police forces are involved, there was no previous right of appeal. If it was the AFP, you could go to the federal Ombudsman, but, if it was a state matter, there was no right of appeal.

Secondly, the government has accepted the recommendations to enhance the rights of lawyers in these matters. Historically, I have never been one to argue for a higher legal involvement, but it became apparent from the evidence in one or two instances that you need a higher involvement by lawyers. For instance, in the hearings of a prescribed authority—depending on who the prescribed authority was—lawyers could not intervene in proceedings to have the questions clarified so that their clients understood them. This is remarkably important when, if the clients falsely answer, they could be sentenced to five years in jail. It is just a matter of getting the balance right, and I am very pleased that the government has accepted these recommendations.

The one really jarring note in this government response is its almost insolent dismissal of the committee’s recommendation as to the length of the sunset clause. A unanimous recommendation by nine members of the committee, from all parties—Liberal, National and Labor—was that a sunset clause be adopted. We took a three-year sunset clause and recommended that it be 5½ years—quite a generous extension of the sunset clause. We nominated a specific date for the sunset clause that fitted sensibly with the electoral cycle and meant the review and the revote on the legislation would be at the midpoint of a parliamentary term, not subject to all sorts of emotive pressures. It could be rationally dealt with at the time.

I think a 5½-year sunset clause was a very reasonable proposition from the committee. But what do we get from the government? ‘Oh, no, we’re not going to have that. We’ll have a 10-year sunset clause.’ Well, I do not think 10 years is a sunset clause, frankly. How many people in this chamber will be here in 10 years time? Looking around, I guess there may be one or two—maybe none. Senator Polley is here, so we will say one. So, in 10 years time, Senator Polley, I want you to closely look at this legislation again, because we will probably have gone through three director-generals by then. I do not think 10 years is a justifiable thing and I thought I would put that view on the record right now.

The main value of a sunset clause in this case is to keep an agency honest. When an agency know that they are going to be reviewed in three or four years time they tend not to abuse their powers. When it is 10 years away, why would they worry about it at all? This is not any ordinary piece of legislation. This is a remarkable piece of legislation that allows people to be questioned without a right of protection of silence. It allows people to be detained for 28 days and to be questioned at a variety of times over those 28 days. There is a major slice at civil liberties in this legislation. I do not challenge that, because what we are trying to deal with is the threat of terrorism. But what we also want to do is put in the necessary checks and balances, the necessary scrutiny, so that no abuse can occur.

Really, a 5½-year sunset clause is a protection for ASIO. It is not a luxury to give them 10 years. They would be better off with a 5½-year sunset clause than they ever will be with a 10-year one. We tested this with witnesses from Attorney-General’s and from ASIO. We asked, ‘Why do you want no sunset clause at all?’ ‘Well,’ they said, ‘it is resource intensive to have a review and a sunset clause and it distracts from our main mission.’ I have to tell you, Mr Acting Deputy President, if an organisation is not robust enough to suffer scrutiny, if it cannot mobilise the necessary resources to explain itself, it should not be in business. It is a pathetic excuse. Basically, when you read this response, that section amounts to inconsequential spin. It is pathetic. It is just plain weasel words. They have been tested and they could not come up, yet they have repeated the same old arguments.

So what has changed? Why have a three-year sunset clause and move to a 10-year sunset clause? I will tell you why: it is rule 39-37. When we put a three-year sunset clause in, the government did not have a majority. Now that the government has a majority, rule 39-37 applies and we are treated with absolute contempt. This is simply hubris at work, and I find that part fairly sad.

Friday, 31 March 2006