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Tuesday, 2 December 2003
Page: 23463


Mr McCLELLAND (4:58 PM) —I rise to speak on behalf of the Australian Labor Party in respect of the ASIO Legislation Amendment Bill 2003. We are supporting it after careful and detailed examination of its provisions, and we are prepared to facilitate its passage through the parliament this week. The bill would alter the machinery rather than the framework of the antiterrorism questioning regime established earlier this year by the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2003. Members will recall several late night sittings considering that in the context of several parliamentary inquiries.

The investigation of Willie Brigitte revealed technical flaws which affected ASIO's ability to question people who ASIO believed had significant information about potential terrorist attacks or to assist generally in the gathering of intelligence. The amendments address a limited number of technical problems identified by ASIO during its administration of the questioning regime. We appreciate the frankness and sincerity of the briefing that has been provided to us on these matters.

The first area of amendment relates to interpreters and where they are to be used during questioning. This amendment would permit a prescribed authority—a prescribed authority is effectively the supervisor of the questioning process—to extend the time available to question the subject of a warrant by three additional eight-hour blocks, bringing the maximum possible period of questioning to 48 hours. We should indicate that the discretion is vested in the prescribed authority; the extension of time will not necessarily follow. The prescribed authority already has discretion as to whether to extend a questioning period. Obviously this depends on the quality of the questioning, the subject matter involved and the information that is being obtained from the subject. That same discretion will still be exercised by the prescribed authority.

The absolute maximum period that a person can be detained would remain exactly the same—that is, seven days—and a person could only be questioned for eight hours in one 24-hour period. The criteria for allowing further eight-hour blocks of questioning, as I mentioned, would be the same as that for earlier extensions—that is, the prescribed authority would have to be satisfied that further questioning will substantially assist the collection of intelligence in relation to a terrorism offence and that the questioning, through the interpreter, is being conducted properly and without delay, not as a ruse for obstructing the questioning process.

The House will recall that the prescribed authority must be either a retired or serving judge or a presidential member of the Administrative Appeals Tribunal—presidential members being either judges or senior and experienced lawyers. The intention of the questioning regime is to give ASIO sufficient time within a safe, supervised environment, under the control of the prescribed authority, to question people where other methods of intelligence gathering would be ineffective. The opposition believes that this amendment is reasonable and can be supported.

It has been suggested that providing for extra questioning time when interpreters are being used breaches article 26 of the International Covenant on Civil and Political Rights by discriminating on the ground of language. On careful reflection, we do not believe this argument can be sustained. According to the United Nations Human Rights Committee, differential treatment does not constitute discrimination provided it is based on objective and reasonable criteria. Obviously the need for an interpreter is itself a necessity for differential treatment.

ASIO has advised that the questioning time is effectively halved when a person is questioned using an interpreter—obviously to permit for the exchange of information. The reality is that the capacity of ASIO to gather intelligence that may substantially assist in the prevention of a terrorist attack or the apprehension of a terrorist would be seriously diminished if this measure were not included. For this reason, we firmly believe the amendment is based on objective and reasonable criteria. Indeed we note that a comparable provision already exists in section 23C(7)(b) of the Commonwealth Crimes Act. That provision provides that any time during which questioning of a person is delayed to allow the person to communicate with an interpreter is to be disregarded when determining how long the investigation period has run—that is, the period a person may be detained after arrest for the purpose of investigation. Effectively the stopwatch is turned off while the interpreter is involved. The legislative model proposed in this bill avoids that cumbersome procedure.

It should be made clear that the need for this measure did not arise from the process of negotiation and amendment which preceded the enactment of the questioning regime earlier this year—that is, the original ASIO bill drafted and introduced by the government did not distinguish between questioning times for persons with or without an interpreter. I recall it was, in fact, a government amendment that provided for interpreters—quite sensibly. Obviously there would be a need for interpreters, but it is fair to say that the collective mind of neither the government nor the opposition was focused on this particular issue.

The second area of amendment concerns passports and exit from Australia. Two new offences are proposed to deal with these matters. The first is the offence of failing to surrender an Australian or foreign passport after being notified of the issuing of a questioning warrant. There is an obligation on the Director-General of Security to return a passport, as you would expect, as soon as is reasonably practicable after the questioning warrant has expired. The second is the offence of leaving the country after being notified of the issuing of a questioning warrant, and before the expiry of the warrant, without permission from the Director-General of Security. Each of these offences carries a maximum penalty of five years imprisonment. Once again the need for such a provision was suggested following the investigation surrounding Willie Brigitte, when it was determined that a person subject to a questioning warrant—as opposed to a detention warrant—may seek to frustrate the gathering of intelligence by fleeing Australia.

The opposition regards these as reasonable measures to minimise the risk that such intelligence gathering about a potential terrorist attack will be frustrated by a person who is the subject of a questioning warrant leaving the country. Obviously people of fair mind would say it is desirable that a person be questioned under a questioning warrant, as opposed to a detention warrant, if that is at all possible. These circumstances would permit that alternative to be available rather than necessitate the detention of a person simply to avoid them leaving the country. That can be prevented by the measures that have been adopted by this bill. Again it is important to record that the need for these amendments did not arise from any negotiation or compromise in the House of Representatives or the Senate on the original bill—that is, these issues were simply not addressed in the original legislation as drafted and introduced by the government.

The third purpose of these amendments is to broaden the protections against disclosure of information relating to questioning, and it is likely to be the case that this is going to be the most controversial of areas. Currently the focus of the disclosure provisions is on unauthorised disclosures by specified people, such as lawyers, parents or other representatives of a person being questioned, who are likely to be present at the questioning. The amendments in this bill would refocus these provisions on disclosures that are not `permitted disclosures', whoever the discloser may be.

Two new offences have been proposed. The first offence prevents a person from making a disclosure of information without authorisation where the information relates to the fact of a warrant being issued, the questioning or detention of a person under the warrant, or operational information during the 28-day period the warrant is in force. The second offence prevents a person from making a disclosure of operational information without authorisation for two years after the warrant ceases to be in force.

The first offence covers information, as I have mentioned, in relation to the warrant, but the second is limited to operational information gained as a result of the questioning under a warrant—in other words, after 28 days, a person could reveal that the warrant had been issued and that they had been questioned by ASIO, but they could not reveal the contents of the questioning until after two years. In respect of both offences, the prosecution would have to prove that a person intended to disclose information and was reckless in respect of the other elements of the offences—that is, they knew of a substantial risk but ignored that risk. The exception to this is that a person who is the subject of the questioning warrant and their lawyer are subject to strict liability on the question of whether information is operational information. That is because the person and their lawyer would have been directly involved in the questioning and would be more aware of the sensitivity of the information, merely from the fact that it was the focus of the questioning.

The opposition also regards this amendment as reasonable in order to protect the integrity of ASIO's intelligence operations against threatened terrorist activity. This is consistent with Labor's position on the earlier legislation which implemented this questioning regime when we supported strong protections against disclosure of operational information and information about a questioning warrant—I recall that we may have indeed proposed amendments that strengthened the government's provisions.

While they are never free of controversy, as I have mentioned, and inevitably impose some restrictions on the reporting of information, provisions against disclosure of information are normal for organisations whose task it is to investigate and prevent serious criminal activity, such as the Australian Crime Commission, where there is an obligation not to disclose information about an Australian Crime Commission investigation for five years. There is clearly a balance to be obtained in open debate of issues of public importance in a democratic community—we must balance the interests of the community in having access to information for the purpose of that debate against the risks to the investigation procedure. It is not an overstatement to say that in some instances it is potentially a risk to the safety of individuals should that information be disclosed. For those in the community who would argue that these measures are excessive, we would ask them to have regard to those two fundamental requirements.

The fourth and final measure that the bill introduces would be to remove any doubt about the ability of the prescribed authority to give directions consistent with questioning warrants, including in relation to detention. We see the amendments as being essentially technical, and they have been proposed more out of abundant caution, as we understand the position. The amendments are not intended to alter the powers of the prescribed authority, who performs a very important role in the task of supervising the questioning process.

In summary and in conclusion, the opposition have carefully scrutinised the detail of this bill, as we do always when questions of civil liberties are involved. We have concluded that the bill is balanced and justified on the basis of overcoming some technical impediments to the effective operation of the questioning regime. We will support these measures, which are designed to improve the machinery of the questioning regime that was put in place by the parliament after considerable debate and consultation earlier this year. Given the controversy surrounding the earlier legislation and the numerous expressions about powers—perhaps with some longing for the powers possessed by secret service agencies in other countries, including those of French authorities to detain people without charge for up to three years—it is perhaps inevitable that there will be a high degree of public interest in and comment on this bill as to whether it is going too far in the impact that it has on people's civil liberties and, in particular, the right of discussion of issues of significant public importance.

However, on careful examination and given the potential serious consequences of a terrorist incident, we do not believe that these amendments are of such significance as to warrant being delayed by a full Senate committee inquiry, which could delay their implementation until some months into next year. We think the public interest is served by the legislation being passed expeditiously, to assist ASIO and those involved with the questioning regime to apply it, should it be needed, as effectively as possible for the purpose of protecting the Australian community from potential terrorist attacks or in the event that information is obtained that could lead to the apprehension of terrorists themselves. We do not see these measures as affecting the fundamental structure and protections that were inserted in the previous legislation. The amendments, for instance, do not alter the maximum period of detention. They do not limit access to legal advice or otherwise change the strong safeguards insisted on in earlier debate. Rather, they close loopholes in the machinery of the existing questioning regime which, thanks to the parliament's insistence, gives ASIO powers that are robust but balanced by strong safeguards.

It is important to remember that these new provisions are subject to the same review and, indeed, the same sunset clause as the questioning regime established by the earlier legislation. I think Australians on the whole will permit the exercise of significant powers by our secret service organisations in the context of there being appropriate safeguards. They will indeed assist those agencies in going about their tasks—again, provided they are confident that the powers are being adopted for sound measures and are not being exploited for political purposes. These measures are in that category. We sincerely trust that that will continue to be the approach of the government. Quite frankly, success in the fight against terrorism requires the support of the community generally. We will have that community support if they feel they are being included in the process and if they feel that there are adequate safeguards in place and that measures are not being adopted simply for political purposes. As I have said, these measures are not in that category but are being proposed, we accept, in good faith and are justified. On that basis, they will be supported by the opposition.