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Tuesday, 13 June 2006
Page: 125


Senator LUDWIG (7:39 PM) —I rise to speak on the ASIO Legislation Amendment Bill 2006. This bill comes with a significant history attached and it is worth while—in part at least—going through some of the background of this particular bill. Those in the chamber might recall that it was introduced in a form in 2002. It sought to enable the incommunicado detention of nonsuspects, both adults and children, for up to 48 hours with potential for the indefinite renewal of warrants under which they were to be held. That is the background upon which this current bill is before us. That bill was referred to the then Parliamentary Joint Committee on ASIO, ASIS and DSD, together with other antiterrorism bills at that time. It was also referred to the committee that I served on—and still do—as a participating member of the Senate Legal and Constitutional Legislation Committee.

To go back through some of the history, numerous recommendations came out of that particular process, the 2002 bill passed the House of Representatives and was further amended in the Senate. The House of Representatives had accepted many of the amendments but negatived others that the Senate continued to press for. As a result the bill did not proceed. In fact it was laid aside and the rest finally came when the government brought forward a second bill—the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002. It was introduced into the House of Representatives back in March 2003. It was passed but, during the course of the passage through parliament, significant amendmentswere also made to the extent that it was—as those on this side of the chamber would say—a significantly improved bill that finally passed and was enacted.

It had significant powers, and you have to recall the time that was around—it was post-September 11, the government was urging these matters to be pressed and passed, and the opposition was taking a careful and considered approach as it always does in examining these matters. But ultimately what occurred was that the bill became law. What that also laid out was the ability for the matter to come back and be reviewed. What we have now is another report by the Parliamentary Joint Committee on ASIO, ASIS and DSD entitled ASIO’s questioning and detention powers: review of the operation, effectiveness and implications of division 3 of part III in the Australian Security Intelligence Organisation Act 1979. It provided the ability for the parliamentary joint committee to conduct what can only be considered an extensive review. It commenced, effectively, on Friday, 17 January 2005 with an advertisement which started the process. Background papers were prepared by the committee secretariat, hearings were then convened and conducted by members on that committee, and finally this report was produced. That is, in effect, the background to where we are today.

What I can say is that that committee did provide a significant number of recommendations, 19 in all, and it provided for the position where—and I will not go through, and certainly do not have the time to, each and every one of those recommendations—many were picked up by the government in this bill. But I think it is important to look at what the current provisions for questioning and detention are. In short, they enable:

... ASIO to obtain a warrant from an ‘issuing authority’ for a person to appear before a ‘prescribed authority’ for questioning in order to obtain intelligence that is important in relation to a terrorism offence.

Of course, the reasons for that would seem obvious to most. ASIO does have extensive powers but it is also charged with a very important task. ASIO is responsible for protecting Australia and its people from espionage; sabotage; politically motivated violence, including terrorism and the promotion of communal violence; attacks on Australia’s defence system; and acts of foreign interference. So ASIO does have significant powers under this legislation but it also has significant responsibility to ensure Australia is safe.

This bill deals with the ASIO terrorism related questioning and detention powers. The ASIO Legislation Amendment Bill 2006 includes a number of changes that adopt many of the recommendations of the Parliamentary Joint Committee on Intelligence and Security, which I was just speaking about. This is a significant breakthrough in improving a flawed bill. It also extends the sunset clause to 10 years, for review by legislation on 22 January 2016. I will come to this matter, as it clearly needs to be corrected.

Recommendations 2, 3, 6, 8, 11 and 12 of the Parliamentary Joint Committee on Intelligence and Security have been adopted. I will look at a couple of those. Recommendation 2 states:

The Committee recommends that, in order to provide greater certainty and clarity to the operation of the Act, the legislation be amended to distinguish more clearly between the regimes that apply to a person subject to a questioning-only warrant and that applying to detention.

In other words, it was not clear that there were two regimes. The recommendation seeks to ensure that there is a difference to be brought to bear, depending on whether the person is subject to a questioning-only warrant or detention. Recommendation 3 states:

The Committee recommends that the Act be amended to achieve a clearer understanding of the connection between the period of detention and the allowable period of questioning.

These seem to be fundamental matters that are now being sought to be corrected and agreed to. Recommendation 11 states:

The Committee recommends that:

  • a subject of a questioning-only warrant have a clear right of access to the IGIS or the Ombudsman and be provided with reasonable facilities to do so ...

I will not go to every recommendation, but schedule 2 provides certain rights for those being questioned or detained and questioned. Those rights clarify the maximum length in detention and how long a person may be questioned for and provide some clarification of the involvement of lawyers. The committee’s recommendation of a clearer regime dealing with the period of detention and the allowable period of questioning has been adopted. The joint committee’s recommendation that division 3 of part III of the act be amended to provide clarity between procedural time and questioning time has also been adopted. The recommendations to improve the operation of the act by distinguishing more clearly between the regimes that apply to a person subject to a questioning-only warrant and that applying to a person held under a detention warrant are in this bill.

I think it is clear that Labor has succeeded in achieving an amendment that clearly distinguishes between ASIO warrants for questioning and those for questioning while in detention. The bill also protects client-lawyer privilege in cases involving questioning warrants and in such cases enabling contact between a subject and their lawyer at any time while the subject is before a prescribed authority for questioning. In this amendment there is an explicit right of access to the state ombudsman or other relevant state bodies with jurisdiction to receive information and investigate the conduct of state police officers. It also imposes an obligation on the prescribed authority to advise the subject of this right.

That seems reasonable. You would expect that to occur. The ombudsman would be entitled to investigate state police officers. It is reasonable that the prescribed authority advise the subject of a warrant of their right to complain to relevant state bodies like the ombudsman. Items 5 and 6 of schedule 2 of the bill include amendments that ensure both questioning warrants and warrants for questioning and detention permit the person to contact a single lawyer of their choice at any time that they are appearing for questioning or are in detention. This equates to recommendation 4, in which the committee recommends that ‘a person who is the subject of a questioning-only warrant have a statutory right to consult a lawyer of choice’. If a person is appearing for questioning before a prescribed authority under a questioning warrant and indicates that they want to make a complaint to the Inspector-General of Intelligence and Security or the Commonwealth Ombudsman, then the prescribed authority can defer questioning and the person must be given facilities to make the complaint. This gives effect to recommendation 11, in which the committee recommends that ‘a subject of a questioning-only warrant have a clear right of access to the IGIS or the Ombudsman and be provided with reasonable facilities to do so’.

This bill allows a person who is detained under a detention warrant to make a complaint to the complaints agency of a police service, state or territory. The bill also enables a person’s lawyer to address the prescribed authority during breaks in questioning, which equates closely to recommendation 5. Whilst there are improvements to this legislation, the government has failed in two very important areas. Labor is deeply concerned that the government has not agreed to recommendations 10 and 19. Recommendation 10 states:

The Committee recommends that:

  • the supervisory role of the prescribed authority be clearly expressed; and
  • ASIO be required to provide a copy of the statement of facts and grounds on which the warrant was issued to the prescribed authority before questioning commences.

In recommendation 19, the committee recommended that the bill have a sunset provision. But, more importantly, the government and the opposition differ on the time. The government has proposed 10 years, which is, quite frankly, untenable. When the government was in opposition, the Liberals argued on many occasions for sunset clauses of much shorter durations. You can go back and have a look at some of those pieces of legislation, such as the Copyright Amendment Bill 1990. Way back in 1991, the Hon. Andrew Peacock argued for two years in a coalition amendment. You can go back to the Migration Legislation Amendment Bill (No. 4) 1994, for which, surprisingly, Mr Ruddock, while not opposing the bill, looked at three years. Mr David Connolly, for those who might recall, back in 1995 argued in a coalition amendment for two years.

Parliament imposed a three-year sunset clause on the 2002 antiterrorism laws together with an independent review. That was the standard this parliament set in 2002 on similar laws. The United Kingdom’s 2005 antiterrorism laws are subject to a one-year review. I could say a couple of things about the proposed 10-year sunset clause, but it is inconceivable that you could say with a straight face that 10 years is an acceptable period without a review. It would be ridiculous to suggest it if you were not the government, but it seems that the government can say with a straight face that it is reasonable. I do not think it is and nor do the opposition and, I suspect, minor parties and many who made submissions.

The second amendment deals with this government’s arrogant refusal to adopt the committee’s recommendation to require ASIO to provide a copy of the statement of facts and grounds on which the warrant was issued to the prescribed authority. The prescribed authority is supposed to supervise the questioning of a person. It is, you would think, impossible for the prescribed authority to assess whether any questioning is outside the scope of a warrant if they are not provided with a statement of facts and grounds on which a warrant was issued. At 3.59 of the committee report, the committee states:

The Committee believes that, for the prescribed authority to discharge fully their responsibilities, it is important that they have access to relevant information. The prescribed authority is not currently provided with a copy of ASIO’s statement of facts and grounds which support the issuing of the warrant. Access to this information will assist the prescribed authority exercise their supervisory role and a copy of all the relevant documentation should be provided before questioning begins.

It would seem sensible to follow that course. However, this government has demonstrated on many occasions before that it is not and does not wish to be sensible in respect of these matters. Labor will seek to move these amendments and will give the government another opportunity to reconsider its position and support Labor’s amendments. I can foreshadow that now.

Turning to the substantive debate, we have to recall that this was no ordinary run-of-the-mill legislation that sometimes passes in this house. It was perhaps best described in ASIO’s questioning and detention powers, the parliamentary joint committee report, which indicated that this legislation was one of the most controversial pieces of legislation ever to come here. When you look at the period of time, it was a significant piece of legislation which took a while to get through parliament in a form that was finally acceptable to all to pass.

Now we have the review and the government should be in a position to look at the recommendations that arise out of the review and adopt those recommendations, but we find again that the government has chosen not to do that. That is, as I indicated earlier, a significant disappointment. It is the case that the recommendations would provide greater clarity in the operation of the bill but, without picking up some aspects of those two important amendments, the government continues down the track of only doing half its job in this matter. The bill will provide greater certainty and clarity in the operation of the act and it will ensure that greater differentiation is applied in respect of the questioning-only warrants and those applying to persons held under detention. And those changes are welcome, as are the other matters. (Time expired)