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Tuesday, 13 June 2006
Page: 129

Senator STOTT DESPOJA (8:00 PM) —The incorporated speech read as follows—

I rise to speak to the ASIO Legislation Amendment Bill 2006.

The existing laws—and now the re-enactment of these laws—are a violation of the civil liberties of Australians. The laws curb the everyday freedoms of Australians and compromise the integrity of the fundamental institutions that are the foundation of our Government. Worse still, without any official codification of individual rights in this country, we are reduced to simply trusting that the Government knows what constitutes an abuse of its powers. This is simply not good enough.

The legislation gives the Executive the power to detain and question people who are not even suspected of a crime for up to seven days. It gives them the ability to detain and question minors.

These laws undermine the separation of powers doctrine which is the central political convention of this country. This Government is allowing itself to be manipulated by Terrorists to take away the freedoms which we hold dear. If we unjustly strip the freedom of just one person in the name of fighting the terrorist threat, we have already lost not just the battle, but the entire War on Terrorism.

ASIO’s so-called ‘questioning and detention powers’ are extreme measures that are unprecedented in Australia’s history but let’s call them what they really are: interrogation and detention powers. These laws are not proportionate to the supposed threat of terrorism. So far, Australian interests have been attacked by terrorists offshore in Indonesia in 2002 (Bali), 2004 (Australian Embassy Jakarta) and 2005 (Bali). Thankfully, we have no experience with so-called home grown ‘clean skin’ terrorists of the kind that struck at London last year.

When the original legislation was introduced in 2003, the then Attorney-General acknowledged that the measures were extraordinary “We have always said that we recognise that this bill is extraordinary; indeed, I have indicated repeatedly that I hope the powers under the bill never have to be exercised. But this bill is about intelligence gathering in extraordinary circumstances and is subject to significant safeguards.” despite ASIO’s assessment that this country is currently facing a ‘medium level’ threat.

The Government and the Opposition have had time to review and assess the operation of ASIO’s powers of interrogation and detention. The Democrats despite not being directly involved in this committee process have followed it closely and have observed the submissions made to the Parliamentary Joint Committee Inquiry into the interrogation and detention laws.

I note the report produced by the Committee states there was an overwhelming view from the submissions that these powers not be renewed and that all but 3 of the 113 submissions made to the inquiry called for the sunset clause to at least remain in operation.

The Government intends this legislation be in operation for a 10 year period before another parliamentary review and the sunset clause should be activated.

This level of delay is unacceptable and irresponsible.

In order to ensure that laws that dramatically affect the lives of all Australians are not abused, it is crucial that we maintain safeguards to ensure accountability and provide a check on executive power.

The fact that these laws will not be reviewed until 2016 suggests the Government would like to see them as a permanent part of the legal landscape in this country.

The report published by the Committee states that ASIO, to date, has been judicious in its use of the extended powers, however, it remains that the scope of these powers could potentially allow for them to be abused at some future date by an overzealous or incompetent Minister. This possibility would undercut the professional ethos of ASIO and any supporting security agency. Furthermore, under these conditions, what recourse do citizens unjustly singled out and victimised by these laws have in making the government accountable for their actions when things go catastrophically wrong?.

For example there is nothing in the legislation that requires that anyone must ensure that interrogation stops after a 48 hour period. While, to date, we have not had any incidents of interrogation continuing longer than the 48 hours, there still remains the potential for investigators to go beyond this period of time.

Such actions would be in breach of international conventions but not illegal under domestic legislation.

The ability of such abuses of power to go unnoticed is also possible as the legislation does not contain sufficient methods for an affected person to bring complaints to the attention of a non-governmental party. The secrecy provisions ensure that that this person does not communicate any grievances in a manner which would satisfactorily hold someone accountable for abuse of power.

Furthermore, as a Civil Liberties Australia submission dated November 2005 stated: “The world’s best police and security services with the world’s best laws and regulations will, on historical evidence, undertake surveillance on, detain and control/arrest a minimum of 500-1,000 individuals over that same time frame to achieve conviction of a possible 100. At the very least, twice as many innocent people will be caught up by provisions of the legislation each year as those with any case to answer” (CLA 07/11/05: 1). These types of figures are unacceptable.

Under this legislation, a person who discloses anything without authorisation regarding what transpired during their interrogation or detention within a two year period is liable for imprisonment for up to five years. The International Commission of Jurists stated in their submission that

‘because of the two year ban, there is little public scrutiny of the operation of the questioning powers. We have really no way of knowing what is going on. In this way, Australia’s laws are even more oppressive than those in the US and the UK.’

Australia remains one of the last bastions of Western democracy not to have some form of legislative instrument that encapsulates our basic freedoms and rights as Australian Citizens.

The framers of the Australian Constitution believed at the time of its drafting that the doctrines of Responsible Government, Natural Justice and the Separation of Powers should be enough to protect the freedoms of Australian citizens. They would turn in their graves if they were to bear witness to the events of recent times in these chambers, where we have legislation introduced that has the Executive being given the power to detain innocent people for periods beyond what any reasonable person would consider not to be punitive.

In the absence of a Bill of Rights or a Humans Rights Act, it is essential that the Parliament ensure that appropriate mechanisms are included in legislation to strengthen protections for civil liberties.

The secrecy provisions contain no balance of public interest and national security. As they stand, they operate as a blanket ban on anyone—including the media—from informing the public of any information regardless of whether it is in the public interest. In reference to the secrecy provisions Professor George Williams from UNSW, stated during the inquiry that;

They apply a very strict test in circumstances where such a test is not reasonable. They may catch people in circumstances where people ought not to be caught.

Of great concern was one confidential submission from the lawyer of a witness which claimed that the press may be used to print stories favourable to the Government agenda. In the submission the lawyer stated;

…it appeared material was briefed or leaked to the media to create sensational stories about the matter, often with aspects that appeared favourable to the government agenda… any person who seeks to correct such stories by giving the full information or even a proper explanation to the media would face the serious risk of prosecution under these provisions.

During the inquiry, there was a repeat of classified information being leaked to the media, with the images of the house of the affected person being shown on national television.

The idea that the media may be manipulated to serve a government agenda while the affected person may do nothing to defend themselves contravenes natural justice.

It is actions like these that have led to a strong sentiment of distrust and fear of the Islamic Community. The Islamic Council of New South Wales stated during the inquiry that:

The Australian Muslim community needs to feel protected and involved within the fabric of Australian society. The current ASIO laws and any proposed increase in powers will only act to reinforce anti-Muslim sentiments that are not in the best interests of a harmonious society.

If we are to encourage the existence of a harmonious multi-cultural society it is crucial that legislation promotes this as much as possible and reduces the potential for vilification on the grounds of race.

Not only are these actions creating anti-Muslim sentiment but it is also creating distrust of ASIO and other government agencies within the Islamic community. The Federation of Community Legal Centres stated during the inquiry that the legislation ‘leads to genuine fear in the community’ and that the level of fear within Melbourne’s Muslim Community was such that people would not attend information sessions about ASIO’s powers for fear of showing interest in terrorism.

A critical issue with the interrogation and detention laws is access to effective legal representation. The legislation provides that a person subject to a detention warrant may have access to a lawyer, however; a person subject to a so-called questioning only warrant is not assured of the right to legal representation.

Despite recommendations made by the Parliamentary Joint Committee report to allow for persons subject to a questioning only warrant to have access to a lawyer, the Government has not amended the legislation to allow this.

The reason given for this failure to include the right to legal representation was that such a requirement might delay interrogation in the face of an imminent terrorist attack.

While this reasoning might seem on the face of it to be reasonable, it does not take account of section 34U (5) of the legislation which allows for legal representation to be removed during interrogation where that legal representation is being unduly disruptive.

The fact that the Government would suggest that a lawyer could be disruptive is also surprising when we consider section 34U (4) of the current legislation, section 34ZQ (6) in the amendments, which states that a “legal adviser must not intervene in the interrogation of the subject or address the prescribed authority before whom the subject is being questioned.”

The effect of this section is to make the role of the lawyer completely redundant and ineffective.

The ability of the lawyer to know whether a particular line of interrogation is appropriate or not is also reduced because a person’s legal representation is not informed why their client is being questioned.

In addition to these measures, a person who is being questioned or detained is not guaranteed the right to talk confidentially with their legal representation. The proposed amendments state that the communications are not required to be made in a way that can be monitored. The inference from this statement is that while they may not be required to be made in a way that can be monitored, they may still be monitored.

Lawyers who made submissions during the inquiry stated these restrictions were unfair to clients.

They also stated that they believed that the interrogation powers were being used to supplement general policing powers, made possible by the lack of derivative use immunity and by the presence of police who seemed to be investigating police, on one occasion State police who were apparently concerned with a non-terrorist related matter.

We have extraordinary powers introduced on the supposition that they will be used to fairly and judiciously fight terrorism yet, we have reports from a lawyer who witnessed an interrogation session and claims that these powers are being used for purposes beyond which they were created.

It is hard to claim that there is no scope for abuse of powers when we already have allegations that such abuses have occurred.

The transcript of these allegations is classified and not having been given the opportunity to participate in the inquiry, I am restricted to calling on the Government to initiate an investigation into these allegations. This is clearly a situation which would suggest that these laws need further and more serious consideration.

Where there is the potential for serious breaches of civil liberties and, in particular, this case where review is not set for another ten years, it is necessary that the legislation contain adequate reporting requirements so that the Parliament can properly consider the success of the laws.

Despite recommendations from the Parliamentary Joint Committee, the Government has not increased any reporting requirements.

Such a move further reduces the agency’s level of accountability.

Australia is constantly being reminded that it is only a matter of time before we suffer from a terrorist attack; that the world on the whole has changed for the worse; and, we must introduce laws that will address this issue.

In 2003 when the ASIO laws were first introduced many concerns were raised by ASIO that the powers were not expansive enough and that the compromises made by the Government operated to weaken the ability of the intelligence agencies.

It was stated that the compromises made the legislation unduly complex.

Yet, during the inquiry on the review of these laws, the Director-General of Security stated that “our concerns were misplaced. We were wrong in worrying about it.”

Admittedly, implementing safeguards can often be more resource-intensive but it is worth the extra strain on ASIO’s massively increased resources in order to keep this highly secretive agency accountable.

In response to the terrorist attacks of September 11, the Prime Minister made the observation that it would be:

... a terrible, tragic, obscene irony if, in responding ... to these terrible, terrorist attacks, we forsook the very things that we believed had been assaulted ...

With a heavy heart I say to the Prime Minister that the Government has terribly, tragically and with obscene irony forsaken the very things that we believed to have been assaulted by the terrorist attacks of September 11.