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Lateline

Thursday 27 October 2005

Attorney-General explains and defends proposed anti-terrorism legislation

TONY JONES: Philip Ruddock, thanks for joining us.  

 

PHILIP RUDDOCK , ATTORNEY-GENERAL: Pleasure, Tony.  

 

TONY JONES: What are the chances you will actually be introducing the new anti-terror bill next week?  

 

PHILIP RUDDOCK: Well it obviously is dependent upon conclusion of final agreement with the States. It was always a matter that we needed to ensure that the COAG agreement was accurately reflected in the drafting and that the States would be consulted. And because the reference of power for the Commonwealth to legislate requires that four, I think, of the six States sign off on any legislation, obviously we're going to be continuing our consultations with the States to ensure that they're satisfied that the provisions reflect the agreement accurately.  

 

TONY JONES: How long can you delay this and still have the bill passed before Christmas, which is what the Prime Minister wants?  

 

PHILIP RUDDOCK: Well, we want to do it as quickly as possible. The Prime Minister's made it very clear - and I would agree with him - that our objective is to have these measures in place before these sittings, which will include another four weeks of the Commonwealth Parliament are concluded.  

 

TONY JONES: Did you anticipate the broad level of community concern about these new laws, particularly from the legal community?  

 

PHILIP RUDDOCK: I've found in relation to any laws of this sort that are unusual and new, excite quite a degree of attention and that doesn't surprise me.  

 

TONY JONES: It's not just the legal fraternity, of course. In the past few days we've spoken to 25 of the country's leading security experts not working for Government. 15 of them say the laws are not proportionate to the terrorist threat. They're saying effectively that you've gone too far.  

 

PHILIP RUDDOCK: Well look, one of the reasons that these laws are proceeding is because the competent advisers to the Commonwealth - and that includes our security agency and also the Australian Federal Police - outlined the nature of the risk. A lot of that material is not in the public arena, but it was certainly outlined to them. They appreciated the sense of urgency surrounding these matters. The Australian Federal Police drew very heavily upon the London experience and looked at the powers that people believe may already be in our law. They've tried to use those provisions and find them inadequate for the task.  

 

TONY JONES: Those who say you've actually gone too far with these laws include Gerald Walsh, former deputy director of ASIO, Hugh White, former deputy secretary of the Defence Department, Peter Jennings, former adviser to the PM on strategic policy, Sandy Gordon, former head of intelligence for AFP. Does that worry you - that people at that level think you've gone too far, that the laws are not proportionate to the threat?  

 

PHILIP RUDDOCK: Well, I mean, I haven't talked to them individually. What I know is the advice that we have. Now people who've been employed in a security agency - it depends how recently they have been. It depends on whether they have the knowledge of up-to-date intelligence that our organisations have and you have to look at the advice you are receiving from those agencies. And I've made the point - and I don't try to do it in a way which compromises our intelligence activity - but if you are going to put people under covert surveillance, it requires 30 people. And it's not too hard to imagine how an organisation that employs at the moment up to 900 people has very limited capacity to conduct surveillance operations - covert surveillance operations - along with all their other activities and if you're only dealing with one or two people, the problem would not be there. But when you're dealing with a much larger pool - and I cannot specify the nature of the pool, we haven't at any point, but we do know that people have trained with terrorist organisations. We've got people who are charged with those offences in Australia now. We have Hicks and Habib, who were the subject of commentary because of their training before 2002. It gives you some perspective that this is not something that has been dreamt up for the purposes of pursuing legislative measures that are unreasonable. These are proportionate to the risk that we are advised exists.  

 

TONY JONES: So you would expect all of those people who've trained with terrorist organisations overseas to be on control orders as soon as you have those laws.  

 

PHILIP RUDDOCK: No, I don't say that. I'm simply saying that people who have trained with terrorist organisations are one subset that this law is directed to dealing with. And it's a matter in which a court will have to be satisfied there is reasonable evidence that they have so trained and a court would have to be satisfied that the measures that are being sought are reasonably likely to contain activities which might expose the community to risk. So there are two steps. Both of them require judgments to be formed by judicial officers. But what I am saying is, yes, there are a number of people who've trained with terrorist organisations. Some of them may have recanted, moved on, said, "Look, I had this experience but it's no longer relevant to what I might be wanting to be involved in." But it is a matter in which you have to make some judgments on the basis of what they've done and what we believe they might still be capable of achieving.  

 

TONY JONES: It's already been reported that as many as 80 people may be put under control orders as soon as you've got these laws in place. Do you deny those figures?  

 

PHILIP RUDDOCK: Yeah, I've said they're highly speculative and I'm not going to put a figure. The competent agencies have to make an assessment on the basis of the evidence that they have, knowing that there will be judicial supervision of the reasonableness of the request and the reasonableness of the measures that are being proposed. And they're not matters about which one can speculate, but I can say it is quite clear that there are some people who fit the descriptors that are included in the act to make control orders possible.  

 

TONY JONES: So you would expect, obviously, some of those people will go under control orders as soon as you have the laws in place. You won't say the numbers but you would expect that to happen?  

 

PHILIP RUDDOCK: I would expect that a person who has trained with a terrorist organisation that you believe might still engage in activity which exposes a risk to the Australian community would have to be considered for control orders and you would do so as soon as you had the legislation in place.  

 

TONY JONES: That assumes, of course, that it's actually constitutional for judges to act in this way, to put people under control orders, and the advice that Peter Beattie has received from his Solicitor-General is it is not constitutional for that to happen.  

 

PHILIP RUDDOCK: These matters have been tested before in relation to powers of warrants for a range of security-related purposes. The system that is used for questioning warrants involves a judicial officer in considering a request approved by me, asked for by ASIO, before a warrant is issued. Now that is a matter that we were advised was constitutional when we implemented it. It hasn't been challenged. In relation to all of the surveillance that is undertaken by police under the telecommunications interception legislation, warrants are issued by judicial officers, again using the same power of the constitution of judicial officers acting in their personal capacity and not being involved in any review that might be undertaken when decisions are challenged.  

 

TONY JONES: But Philip Ruddock, the opposing point of view is that it's one thing to issue questioning warrants, it's another thing altogether to detain people without charge, without showing them what the evidence is against them for a period of time in secret. There may be many judges who will refuse to do that.  

 

PHILIP RUDDOCK: Look, there'll be judges who may, in weighing up the evidence, come to a view that the evidence is not sufficient. But the question - and that's always the case - we've said these should be subject to independent judicial review. But the point I make is that there are a range of functions that are now carried out where judges or judicial officers exercise a personal decision-making capacity which the court in Grollo's case in 1995 upheld and our advice from our constitutional experts is that these measures are of the same character. Some people will argue that they're different. Our view is the court would come to the same view as it did before.  

 

TONY JONES: You're talking about the High Court there. You expect the High Court to be forced to come to a view on this. The laws could be struck down, how dangerous would that be?  

 

PHILIP RUDDOCK: Well, that's always a potential in relation to laws. You look at what decisions have been taken by courts before. You look at the provisions of the constitution and where we have a clear separation of powers doctrine, that is part of our constitution and our laws have to comply with it and if people believe the law doesn't, they're entitled to challenge it. That's part of the judicial system that we have. It doesn't mean you don't legislate when you have advice that courts have considered like matters and upheld them in the past. And that's the situation that we face. Yes, there are some people saying, "Yes, if we had the chance to argue this before a fresh panel of High Court judges, we may get a different view". But that's the nature of the judicial system.  

 

TONY JONES: This is the view that we're hearing from the Queensland Solicitor-General, and obviously Peter Beattie, on the basis of that has expressed severe doubts about the constitutionality of these laws and he's saying the problem could be because the safeguards that COAG was expected to be put in place were not put in place in this legislation. What happened to those safeguards?  

 

PHILIP RUDDOCK: Well, the safeguards are there and the safeguards were spelt out in an annexure to the document. In other words, the various evidentiary requirements that would have to be met and the opportunities for judicial review. Now the Prime Minister's made it clear and if Premier Beattie believes we haven't accurately protected and safeguards in the legislation, they're matters that can be properly considered. But the question is to -  

 

TONY JONES: You'll consider new safeguards, will you? Apart from what's in the draft? For example, the Shadow Attorney-General Nicola Roxon is calling for a judicial review process for preventative detention which could actually include an appeals system.  

 

PHILIP RUDDOCK: Legislation includes the opportunity for judicial review and every decision that is judicial reviewable is appealable.  

 

TONY JONES: Now Nicola Roxon is saying that people targeted for preventative detention or control orders or their lawyers ought to be able to see the evidence against them. What's wrong with that?  

 

PHILIP RUDDOCK: Well, questions of evidence in relation to security matters is a very sensitive one. We've discussed it broadly in relation to legislation that is in place and it's been approved by the Parliament for dealing with terrorist trials. And it is important to have a balanced approach in order to protect the identity of human sources. Sometimes to protect information that you can obtain from liaison bodies and at other times to protect techniques that you use which if you disclose them will render them useless for further investigation. So you have to get a balanced approach in relation to these matters. There are some matters that will have to be handled under the legislation that deals with these questions. It was approved of by the Parliament. These are terrorist offences and the same provisions will operate in relation to these matters as operate in relation to other terrorist offences when they're dealt with by the courts.  

 

TONY JONES: Why do you need the draconian secrecy provisions which would prevent apparently anyone, even within a family, communicating the fact that one member of their family is in preventative detention?  

 

PHILIP RUDDOCK: Well you look at the purpose of preventative detention. Preventative detention is, for a very short period of time, in the context of the terrorist act.  

 

TONY JONES: Two weeks is it not?  

 

PHILIP RUDDOCK: Two weeks, yes.  

 

TONY JONES: But you couldn't expect a family not to communicate among each other that one member of the family has been put in preventative detention for two weeks?  

 

PHILIP RUDDOCK: Well, let me put a hypothetical. I don't like hypotheticals, but the hypothetical might be that you were dealing with a family where other members were complicit in the terrorist operation that is under way. And that's one of the circumstances that has to be met for a preventative detention order to be sought. You have to establish that it's either occurred and you need to protect evidence or it's about to occur. Now the seriousness of that ought not to be understood estimated. It's a very serious situation that we could be faced with. Now the question is, do you advise people who are part of this lager scene and warn them that you have ascertained information about what they're going to do and allow them to abscond or take other steps that might bring forward their operation that would expose the broader Australian community to risk. So yes, there are some judgments that might have to be made about who would be told, but we would want the maximum family knowledge about these matters consistent with the police having a proper opportunity to ensure that the broader community is not exposed to risk.  

 

TONY JONES: But the draft has a 5-year jail term for anyone within that family who communicates to another member of that family that someone is in preventative detention from that family. That's a pretty serious criminal offence to be charged with when you're communicating within a family, or even among friends or in the workplace, or to a teacher at a school.  

 

PHILIP RUDDOCK: The carrying out of terrorist acts is a very serious matter in which people's lives are at risk and exposed. And we've seen it abroad, we've seen Australians tragically lose their lives. If people are likely to compromise efforts to thwart such acts, you're dealing with a very serious matter. I wouldn't underestimate or play down the seriousness of those matters at all, Tony. I think the provision of information when you are dealing with a terrorist act that has occurred, or is about to occur, ought to be seen as a very, very difficult issue but one which the penalties have to be proportionate to the seriousness of the offence.  

 

TONY JONES: Philip Ruddock, you know that plenty of people blame you for the culture in the Immigration Department that led to the wrongful detention of apparently more than 200 people, including a number of Australians. They're now asking the question, why should you be trusted with oversight of these extraordinary new powers of detention? What is your answer?  

 

PHILIP RUDDOCK: Well, the answer is very simple Tony. When I was Immigration Minister, I counselled Immigration officers always to make lawful decisions. That's the culture that I believe ought to be in place. It's the culture that I encouraged people to implement. And when you have many of the decisions that you are taking - reviewable as they are - you sometimes find that a step where you believed you had appropriate evidence in the decisions you were taking were reasonable are shown by challenges that are brought to have been not within the law as drafted. And that's the way in which the system is intended to operate and the culture that I expect in relation to these issues is exactly the same - that people in our law enforcement agencies have to act within the law and they have to make lawful decisions and they have to recognise that decisions they take can often be challenged and they'll be judged against those outcomes.  

 

TONY JONES: Philip Ruddock, isn't there even more opportunity for this to get out of control than there was with the powers vested in those Immigration officers who were out of control and made, according to the Ombudsman, catastrophic decisions?  

 

PHILIP RUDDOCK: I think the description "out of control" is quite inappropriate. I think there are a relatively small number of cases in a very large case load where decisions have been shown by later circumstances to have been unlawful at a particular point in time and that can occur. I mean, that's the reason we have opportunities for judicial review and equally, in relation to these matters, we are including measures that ensure that at all stages decisions can be capable of being reviewed independently by appropriate regulatory bodies such as the Ombudsman, the inspector-general of security, and equally, in relation to decisions which require judicial oversight, people have to act lawfully.  

 

TONY JONES: Philip Ruddock, we are out of time. We thank you very much for coming in on a busy day in London to talk to us on Lateline tonight.  

 

PHILIP RUDDOCK: Always a pleasure, Tony.