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Tuesday, 13 June 2006
Page: 159

Senator ROBERT RAY (10:20 PM) —Through you, Temporary Chairman: you are probably right, Senator Bartlett, that most of us will not be here. Of course, I do not mean you, Temporary Chairman Lightfoot. You may well be here then.

The TEMPORARY CHAIRMAN (Senator Lightfoot)—Thank you for that assurance, Senator Ray.

Senator ROBERT RAY —That is all it is. I cannot deliver anything else. In an otherwise splendid contribution from Senator Bartlett, he repeated one piece of nonsense that really has to be addressed. He indicated that someone may be at a function and may know something even though they are innocent and may be subject to one of these warrants. I have to say to you, Senator Bartlett: read the legislation. It is only when all other alternative methods of collection have been expended that these warrants kick in. What would happen in the circumstances you have described is that ASIO would come knocking on the person’s door, have a cup of tea with them and have a discussion. It is only when they suspect the information has deliberately not been divulged that a warrant would be issued. It simply does not happen that way that, just because someone has some information by being at the same function, they are suddenly subject to a warrant. You have to convince the Director-General of ASIO, the Attorney-General and the issuing authority that all other methods that could be used have been used. In those circumstances that you outlined, it certainly would not have occurred.

Senator Faulkner —That is now. It was not the case when Daryl Williams QC was the Attorney-General.

Senator ROBERT RAY —It was not in the original bill, you are right there, but we have traversed that ground once today. I think that is enough. You traversed it so well; what else could I say?

Senator Faulkner —I rest my case.

Senator ROBERT RAY —To assist the committee, my specific questions are: firstly, what resources were involved in the joint intelligence committee review by ASIO, Attorney-General’s and the Federal Police? If the ‘resource intensive’ argument is to be sustained, this committee at least deserves to know what it cost. So tell us what it cost in money, staff hours, intellectual capacity, psychic’s salary or whatever else you like. I would like to know. Secondly, with regard to the argument that it could interfere with operational priorities: has this occurred? I am not asking for the specifics, but has it occurred? Who has asked the question and who has checked whether this is not just some bogus, silly argument put forward and that it does exist in reality?

Thirdly, why was it good enough three years ago to have a sunset clause of three years but now it is 10 years? What has changed in the three years? Was it mere opportunism and lack of principle that meant that three years ago the current government adopted three years, or is it that with a Senate majority and the hubris that follows they believe they can do whatever they like and the principles that they stood for before are no longer extant, as they say in the classics? Do they no longer exist because the government say, ‘We do not actually want a sunset clause, so we will chuck in 10 years and that is off our plate for 10 years’? I hope that is not the case. I hope the commitment to a sunset clause three years ago by the coalition government was genuinely held and was offered and accepted in negotiations on the basis that it was a sound principle. If that was the case, why does the sound principle no longer apply?

Senator Faulkner made a very valid point. We have reviewed the questioning regime. We have affirmed that we believe it is in accord with the legislation—not just the letter of the legislation but the spirit of the legislation. We have had no chance yet to assess whether the detention regime will work, and will work properly, because, fortunately, no-one has been detained. But if in the next few years people have been, to say that we will only review that regime 10 years hence does not seem to be very sensible to me.

Senator Faulkner —It could be in place for 13 years.

Senator ROBERT RAY —As you say, Senator Faulkner, it would have been in place for 13 years without that aspect being reviewed. It is probably the one that has generated the most heat. The ability to detain someone who is not necessarily suspected of a crime for seven days, question them over 24 hours and almost keep them incommunicado is a pretty drastic step in the way we construct our legal system. When you look at the treatment of people suspected of serious criminal offences, you see there are far more protections than there are in this detention regime. If, for some reason, a new Director-General or a new Attorney-General were to really get the bit between their teeth and decide that the detention regime is the way to go, there would be no review or assessment for 10 years.

We do have protections. The Inspector-General of Intelligence and Security has been written into the legislation. That will be helpful, no doubt, in any of these particular processes. But, ultimately, you cannot beat parliamentary scrutiny. For all the foibles and faults of parliamentarians, for all the egotistical trips that they go on and for all the political opportunism that exists, it is still one of the safest and best methods of scrutiny. In an adversarial political system, it promotes transparency and it promotes honesty. To, if you like, delegate that away to an Inspector-General, Attorney-General or somewhere else away from the parliament is not wise. I have to say that nature abhors a vacuum. If you create a vacuum in this area then those very questions that are not asked in open committees and estimates committees will now be asked there, rather than in the more conducive and constructive area of the joint intelligence committee. That will inevitably happen because public scrutiny will be regarded as having been reduced. I think that is a major pity in these particular circumstances.

We are not here alleging abuse and misuse of powers by ASIO. We are not alleging that, but if we do not take into account the potentiality of abuse and we do not put systems in place to scrutinise it and deter it, it may well occur into the future. This sort of legislation has created enormous ripples in our community. You can just start to detect now that people are becoming more comfortable with it, that the scare campaigns around it are starting to slide off and that people have moved their attention to other areas. It is such a pity that we are dealing with such an intractable government on this one issue, when we could see off this legislation. We accept our defeat on the last amendment. We do not agree with it but we accept it. What a pity we have to send this legislation on to the statute books with this massive weakness in it.