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Tuesday, 2 December 2003
Page: 23470


Mr ORGAN (5:29 PM) —From the outset, I wish to state my opposition to the ASIO Legislation Amendment Bill 2003. I am dismayed that the Labor Party has decided to facilitate its passage through the House. This bill goes too far, and I cannot accept the Attorney-General's arguments supporting its introduction into the parliament. It is legislation which further eats away at the basic civil rights and freedoms enjoyed and so vigorously defended by the Australian people. Amongst other things, this bill will double the potential detention time for people targeted by intelligence services who require an interpreter. The bill also seeks to impose jail terms on suspects who talk about their interrogation and on others who may wish to draw the public's attention to any matter regarding their interrogation and/or detention. This threat of jail hangs over people for a period of two years after the investigation occurs.

The Attorney-General went to some length in his second reading speech to discuss the implications of the war on terrorism and the need for an appropriate response. We have just heard the member for Cook talk about the importance of dealing with the war on terrorism. There is no doubt that, since the so-called war on terror began after the September 11 attacks, there has been a need for a growing awareness in regard to potential security threats. Apart from dealing with these threats, the government has, in many ways, increased the threat of attacks on Australians by involving us so heavily in the war in Iraq, in particular, and as an enthusiastic partner in the coalition of the willing. I, like many Australians, was extremely concerned that the decision to go to war was made without reference to the parliament, and for dubious reasons at best. Since the tragedy of 11 September 2001, citizens from all over the world have had to face the prospect of tightened security laws and other associated responses by governments. Our own government is, of course, no exception. The bill currently before the House presents part of the response to the terrorist threat.

However, I am not satisfied that appropriate safeguards to protect our rights and civil liberties have been included in this bill. In this sense, I find that it does not strike an appropriate balance—and I therefore oppose it. The purpose of this bill is to amend part III, division 3 of the Australian Security Intelligence Organisation Act 1979, the ASIO Act, to: firstly, extend the maximum period during which a person using an interpreter can be held for questioning under an ASIO warrant; secondly, require the subject of an ASIO warrant to surrender their passports and make them criminally liable if they leave Australia without permission from the Director-General of Security while a warrant is in force; and, thirdly, create new offences relating to the primary or secondary disclosure of information about ASIO warrants or operational information. Important comment on the impact of this tightening up of security powers has been made in the media, and I will refer to some of the arguments later.

This bill derives from the original ASIO Legislation Amendment (Terrorism) Bill 2002, which would have given ASIO new and unprecedented powers to question and detain. This bill was introduced into the parliament in March 2002. It was highly controversial, being the subject of two parliamentary committee reports and amendments in both chambers. There was also considerable public comment and dissent concerning its content and also the view the opposition took to the legislation. However, the bill was laid aside by the House after the Senate insisted on amendments with which the House could not agree. The ASIO Legislation Amendment (Terrorism) Bill 2002 [No. 2] was then introduced into the House of Representatives in March 2003. I was fortunate enough—or, rather, unfortunate enough; for it was not a bill I welcomed—to participate in the debate. After considerable debate and some amendment the bill finally passed both houses in June 2003 and commenced operation on 23 July 2003. The ASIO Legislation Amendment (Terrorism) Act 2003 inserted part III, division 3 into the ASIO Act. In early November this year, the new Attorney-General said that he had asked for a report on `shortcomings' of the ASIO legislation.

The current bill before the House proposes amendments to division 3 of the act and provides, amongst other things, new powers in regard to questioning and detention under an ASIO warrant. At present, the subject of an ASIO warrant cannot be detained for more than 168 hours. They can be questioned under a warrant for no more than a total of 24 hours. Once they have been questioned for this period of time, they must be released. The current bill proposes to double the amount of time to 48 hours, during which time a person can be questioned under an ASIO warrant if that person uses an interpreter because they are not fluent in English or have a physical disability. This means that the changes would allow non-English speakers to be questioned in six eight-hour blocks, making up for the supposed extra time taken in conducting interviews via an interpreter. The Greens are strongly opposed to this part of the bill. As was reported in the Sydney Morning Herald last week, an international law expert, Professor Rothwell, has stated that the Attorney-General's proposed changes to the ASIO Act would be a `clear contravention' of article 26 of the International Covenant on Civil and Political Rights. I do reject the argument put by the member for Barton that there is no such contravention by the act. Article 26 of the International Covenant on Civil and Political Rights says that all persons are equal before the law and prohibits discrimination on a number of grounds, including language. The aforementioned Professor Rothwell said:

It would seem to me that inserting a provision into Australian law which would allow for someone who doesn't have English as a first language to be subject to a maximum of 48 hours interrogation or questioning ... is a clear distinction or discrimination, and would therefore be a clear breach of the convention ...

Professor Rothwell also said that any Australian subject to those laws would have a right to complain to the Human Rights Committee of the UN.


Mr Ciobo —So should they not have an interpreter either?


Mr ORGAN —Of course they should have an interpreter. That interpreter may hasten the interpretation process. Unfortunately, this government enjoys making a habit of flouting international law; so I do not imagine that the Attorney-General will pay too much attention to the way he may be encroaching on international standards regarding human rights in this instance. Apparently, the opposition is also happy to follow the Attorney-General's lead in this instance.

Apart from that, there are many questions of concern relating to the possible extension of questioning time when interpreters are required. For example, should ASIO be able to question children aged between 16 and 18 years who need an interpreter for up to 48 hours? Does the presence of an interpreter facilitate or impede questioning? It may in fact make it faster. We have heard the statements from previous speakers in this debate that it will double the time, but I question that. Should the fact that an interpreter was present at some stage during the questioning process trigger a potential doubling of a person's questioning time, irrespective of how long the interpreter has been present, whether questioning has been conducted through them and whether their presence has facilitated or impeded the questioning process? There are a lot of unanswered questions. The proposed subsection 34HB(8) includes the words:

... an interpreter is present at any time while a person is questioned under a warrant issued under section 34D.

For clarity, should the provision not read instead `an interpreter is present at any time while a person is questioned through an interpreter under a warrant issued under section 34D'? At present, the prescribed authority can only decide to extend questioning at the end of each eight-hour period if they are satisfied that questioning will substantially assist the collection of intelligence about terrorism and that the person exercising authority under the warrant has conducted the questioning properly and without delay. Should there be additional matters about which the prescribed authority must be satisfied if questioning is to be extended because an interpreter has been present—for example, that the presence of the interpreter has contributed or substantially contributed to delays to, or suspension of, questioning?

Concerns have been expressed about the impact of the proposed amendments on non-English speakers, but they may also impact on those who only speak English. The amendments will double the maximum questioning period for those who have an interpreter because they are unable to communicate with reasonable fluency in English because of a `physical disability'—that is, they are doubling the detention period for people with physical disabilities. That is disgraceful. Does the maximum questioning time for people with physical disabilities need to be doubled? No, of course not. Will the amendments mean that people will be less likely to ask for an interpreter, even if they might need one, because they fear a doubling of their incarceration time for questioning? I would think so.

On the other hand, will the amendments mean that interpreters will be provided more frequently, especially given the fact that the doubling of maximum questioning time will be triggered if an interpreter is present `at any time' during questioning under a warrant? Does the doubling of the maximum time for questioning when an interpreter has been used, if combined with detention under the warrant, amount to punitive detention of the sort that requires judicial sanction under the Commonwealth Constitution?

Section 94 of the ASIO Act provides that the annual report of the Director-General of Security must contain specified information. This includes the total number of ASIO warrants issued under section 34D, the number of hours each person was questioned and the number of hours they were detained under a warrant. Should there not be inserted into the ASIO Act additional reporting requirements relating to the use of interpreters and the use of the extended questioning periods? Should the ASIO Act not be amended to require that a person brought before a prescribed authority be given a copy of the ASIO protocol in English or in a community language in which they are fluent? Should there not be a statutory requirement that an interpreter be competent and/or accredited?

The ASIO Act does not prevent a person being subject to more than one warrant. Conditions under which new warrants can be requested and issued are set out in the act. The bill also provides for the confiscation of a person's passport, or passports, while they are the subject of an ASIO warrant. It will be an offence for a person who is the subject of an ASIO warrant to leave or attempt to leave Australia without the permission of the Director-General of Security.

The bill also allows for new secrecy provisions within the ASIO Act. The bill proposes to repeal existing secrecy provisions in part III, division 3 of the act and inserts new provisions. The existing secrecy provisions relate to lawyers and to children's representatives. However, the bill proposes to insert general requirements and general offences which criminalise primary and secondary disclosures of information about an ASIO warrant or about operational information. The secrecy provisions of the bill essentially comprise two separate criminal offences. Both offences are punishable by a maximum of five years imprisonment.

Some compelling arguments in regard to these provisions have come from legal academics, one of whom is Joo-Cheong Tham, an associate law lecturer at La Trobe University. Joo-Cheong Tham has argued that this bill poses a grave threat to Australia's democracy. He was quoted in the Age this week as saying:

The ASIO Legislation Amendment Bill 2003 proposes to criminalise public discussion of much of ASIO's activities by introducing broad-ranging offences.

He provides some specific examples of offences relating to the disclosure of information, such as: journalists reporting on the issue of a warrant soon after it is issued, even if it is issued illegally; journalists reporting on a person who is being detained, even if the conditions of detention do not comply with the act; journalists reporting on conditions of detention for two years after the expiry of a warrant or on ASIO's investigation into the detainee for two years, even if the investigation involves conduct pursuant to the warrant; a parliamentarian highlighting the conditions under which persons are presently detained under the act; or groups publicising the conditions under which the persons are presently detained under the act. The offences proposed by the bill—in particular, the operational knowledge offence—will mean that much of ASIO's activities will be cloaked in secrecy and will not be subject to public discussion.

This bill, if passed, will mean that it will generally be illegal to disclose information relating to ASIO's conduct in detaining and questioning people while a detention and/or questioning warrant is in force, and for two years afterwards. Joo-Cheong Tham has said that if these offences become law they will severely reduce the freedom of the press and the freedom of discussion in this country. Despite the reassuring words from the government and from the member for Barton, these amendments do go too far. They are not just mechanical or cosmetic changes. Amnesty International have also outlined concerns with the bill, including:

The legislation establishes a system under which a person wishing to make public comment on the actions of ASIO would first need to get approval from the Government.

Whilst a person is being detained, no human rights or media or other independent (non government) organisations could make public any existing concerns about the welfare of the detained person, without Government approval.

Organisations such as Amnesty International should not be prohibited or effectively prevented from monitoring the application of ASIO's powers in relation to the protection of human rights.

Amnesty International further states:

While Amnesty International recognises and respects the need to retain a certain level of confidentiality regarding ongoing investigations, the public has a right to know in general terms the degree to which and how Australian security agencies are applying their broad-ranging and unprecedented powers.

The level of secrecy and lack of public scrutiny provided for by this Bill has the potential to allow human rights violations to go unnoticed and in a climate of impunity.

Civil liberties organisation Liberty Victoria has also outlined its concerns with the bill, saying the `secrecy offences pose a grave threat to Australia's democracy' and:

... the imposition of such extensive limitations on free speech and political discourse is grossly disproportional to any legitimate objective.

Liberty Victoria has also stated:

ASIO's activities pursuant to judicially granted investigative warrants are to be covered in a veil of secrecy unprecedented in Australian history.

The mere fact a person has been detained and eye witness accounts of the execution of the warrant will not be able to be discussed publicly.

These secrecy offences pose a grave threat to Australia's democracy and could enable the government of the day to impose a `war of terror' against its political opponents or vulnerable sections of the community.

Indeed, the Australian Greens have been concerned to read of recent accounts of ASIO's behaviour with the powers which they have already been granted by the parliament, and which the Greens opposed. Given that reports of heavy-handedness and inappropriate use of powers have already started coming through, we reiterate that it is not in the community's best interests to increase already extensive powers. For example, yesterday's Sydney Morning Herald reported:

New powers handed to Australian intelligence agencies to combat terrorism have been misused, left lawyers feeling powerless to defend clients facing interrogation and collectively `stripped back' three decades of hard-won freedoms, opponents claim.

The article goes on to quote Adam Houda, who represents five families whose homes were among seven raided by ASIO last month. He said:

“If ASIO or the proscribed authority do not act in accordance with the law during an interrogation, a lawyer cannot stand up and address the hearing in relation to a breach ... They risk being thrown out for disrupting. Our presence is merely a token gesture ...”

These are frightening words, coming as they do from an Australian lawyer. Another lawyer, Stephen Hopper, who is acting for the other two families raided in October, said that, while he supported lawful intelligence gathering by ASIO, abuses of process had already occurred. He said:

“There is one complaint about a coercive threat ... made on behalf of one of my clients—a threat to use detention powers ... (Special Branch) is a good example of how an unaccountable organisation can become corrupted with power and run amok.”

There was also a story in yesterday's Australian which outlined a 17-year-old girl's experience when her family's home was raided by the Australian Federal Police earlier this year. Nosrat Hosseini is currently undertaking her final year at school and wants to study law. She said:

“I have worked so hard this year. I have been doing really well but after the raid I had to help translate for my parents, who were trying to get our things back. It was too much. It has been terrible. My little sister still has nightmares.”

I understand that some of this young woman's study notes were confiscated during the raid, further upsetting her studies.

It is vital that this bill be more substantially scrutinised in the public arena. Australians have a right to know what the government is planning to allow intelligence services to do, and we need to be able to make those services publicly accountable. The government has a responsibility to address the risk of terrorism, but this bill presents an example of the government allowing its agencies to become increasingly unaccountable in the use of their powers, effectively creating a secret police force. The threat of terrorism should not be used to justify stripping back the rights of the Australian people, and it is shameful that the government is attempting to do just that. I therefore condemn this bill and reject it in its entirety.