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Tuesday, 2 December 2003
Page: 23481


Mr RUDDOCK (Attorney-General) (6:20 PM) —in reply—I would like to thank those members who have contributed in this debate, particularly the honourable member for Barton but also the members for Cook, Cunningham, Moncrieff and Flinders. There has been a successive chain of terrorism events around the world which the government has vigorously responded to over the past two years. The ASIO Legislation Amendment Bill 2003 will further strengthen the government's response to that chain of terrorism events.

The government recognise that to prevent terrorist activities occurring on Australian soil we must ensure that our security agencies are armed with the appropriate legal tools to properly advise us. The government have given ASIO special powers to question and, in some circumstances, detain a person for the purposes of collecting intelligence relevant to a terrorism offence. These powers have clearly enhanced ASIO's abilities to perform its functions in the collection of intelligence relating to possible acts of terrorism.

The bill was introduced during this parliamentary sitting as a result of operational and practical limitations that have arisen in the use of these new powers by ASIO. The bill has been drafted to address these limitations and to provide ASIO with a stronger legal basis upon which to collect intelligence for the purposes of combating terrorism.

The bill addresses concerns over questioning time being effectively halved when an interpreter is used. When an interpreter is used, questioning time will be increased from 24 hours to 48 hours without affecting the fundamental structure of the questioning regime, and there are a range of safeguards associated with that measure.

The bill creates two offences to address a situation where the subject of a warrant is a flight risk. The bill would require the subject of a warrant to give up all passports in his or her possession or control to a person exercising authority under the warrant while the warrant is in force. It would also be an offence for the subject of a warrant to leave or attempt to leave Australia without the permission of the Director-General of Security. These offences are aimed at ensuring that ASIO is able to question all persons subject to a warrant without the risk of them departing Australia and therefore not being available for questioning.

The bill clarifies the power of a prescribed authority. I think the member for Barton outlined properly what the role of a usually retired judge might be in giving directions to a person who is being questioned under a warrant. This means, for example, that the prescribed authority may detain a person if he or she is satisfied that the person may seek to avoid further appearances or may alert other persons to investigations. Obviously, if people were alerted to investigations which were current it may undermine the integrity of those investigations and perhaps lead to our capacity to handle a potential terrorist action being impeded.

The bill also provides for security provisions to stop persons disclosing information that may compromise ASIO and terrorism investigations—it is the same issue here—that is, live investigations. The secrecy obligations would apply to primary and all subsequent disclosures of such information. While the warrant is in force, it will be an offence to disclose information about a warrant issued in relation to a person, the questioning or detention of a person or operational information. It is clear that disclosure of this kind of information while the warrant is in force could have significant implications for the integrity of the questioning process under the warrant and could compromise related investigations. I do not think the members for Flinders and Moncrieff outlined that very well in their speeches.

One has to keep a sense of perspective about these matters. As I have said in some of my own addresses recently, a fundamental human right that people in Australia have from their government is the right to be safe and secure. Investigating terrorist offences and being able to deal with those issues in a comprehensive way protect that fundamental right of Australians. You do have to balance those matters with other rights that people enjoy, but I think the fundamental right to security is a pervading one which, in the present environment, governments have an obligation to address.

This bill also prevents the disclosure of operational information for two years. This is designed to protect ASIO's sources, its holdings of intelligence and its methods of operation. It is necessary to prevent the disclosure of this kind of information after a warrant ceases to be in force because of the potential to seriously affect ongoing or related investigations.

In framing these secrecy provisions, the government has been mindful to include strong safeguards by permitting a range of specified disclosures to be made which are not offences. These include disclosures authorised under a warrant or by a direction or through permission of a prescribed authority. A disclosure also may be made by a lawyer for a remedy relating to the warrant or for the treatment of a person under the warrant in a court. A disclosure may be permitted by the Director-General of Security, the Attorney-General or as prescribed by regulation. Additional disclosures would be permitted where a young person is questioned or detained.

I understand there have been some queries about the application of these measures. One query was whether these measures would apply, for instance, to the media. The media has no greater right than anybody else in relation to these matters, and they will be subject to the secrecy provisions in the same way. That is appropriate. The purpose of the provisions is to protect the effectiveness of intelligence gathering operations in relation to terrorist offences, and I do not see why any segment of the public should be exempt from these kinds of provisions.

The government has taken this step only after serious consideration in response to genuine concerns about the integrity and effectiveness of the new regime. We acknowledge that the offences are demanding, but this is because we are dealing with information that could result in the loss of life. The government also recognises that there cannot be a complete blanket over information. That is why these provisions do not apply for an indefinite period of time and there are time limits associated with them and that is why there is a range of permitted disclosures of the sorts that I have already referred to.

I understand there have also been some queries about the application of strict liability to the secrecy offences. Let me be clear on this point: strict liability will not apply to all elements of the offences—nor will it apply to all situations. It will apply only to one element that relates to the content of the information and it will only apply in relation to a person who is the subject of a warrant or that person's lawyer. These people will be left in no doubt about their secrecy obligations and the serious implications of breaching those obligations. The prosecution would still need to prove the subject or their lawyer intended to disclose the information, that they were reckless in relation to other elements of the offence and, in particular, that it was not a permitted disclosure.

In relation to all other people, strict liability will not apply to any element of the offences, and the prosecution's task will obviously be quite difficult in those matters. The prosecution will need to prove that a person intended to disclose the information and the person was reckless in all of the other elements of the offence. The effect is that a successful prosecution could not be brought against a person who discloses information in innocent circumstances or is not culpable for any deliberate or reckless disclosure.

The government believes that the secrecy proposals are measured and reasonably adapted and that they strike an appropriate balance between protecting terrorist investigations from bring compromised and protecting individual rights. On that matter, I hope we will not be proved wrong in relation to some of the compromises that we have made. The government urges the parliament to consider the terrorist events that have taken place in diverse countries around the world and the horrifying reality that terrorism could occur here. If terrorists can have free and lawful access to information about ASIO investigations into their activities, if a terrorist can lawfully leave Australia and avoid questioning required under a warrant, if a terrorist can be questioned for an effective period of 12 hours where the terrorist refuses to speak English, it is imperative that the bill be passed in this sitting period to give full effect to ASIO's existing powers. As the Brigitte investigation has demonstrated, these kinds of issues arise unexpectedly.

The government have brought these amendments forward only after serious consideration and in response to genuine concerns about the integrity and the effectiveness of the new regime. The government will continue to monitor the adequacy and the effectiveness of the legislation in light of any issues that arise from further experience in its implementation and, I might say, as a result of the further inquiries that I have asked to be undertaken, comparing Australia's regime with those elsewhere and on any other matters that are seen as relevant. Our objective is to ensure that ASIO has the tools necessary to do its job. Once the bill is in place, ASIO will be in a better position to protect Australia. I do not say that it will be a perfect outcome. As I say, one needs to be prepared to look at these issues afresh if further matters arise.

There are two other matters that I should address that have been raised during the debate. The member for Barton dealt very well with the issue of whether or not the bill infringes the International Covenant on Civil and Political Rights, particularly in relation to discrimination against people because of their language. I simply endorse the comments he made; I thought they were well taken and an appropriate response.

There has also been a point made as to whether the secrecy of offences infringes the implied constitutional freedom of political communication. The proposed amendment states that the new section 34VAA does not apply to the extent that it would infringe the implied constitutional freedom of political communication. The implied constitutional freedom of political communication applies to communications about government or political matters. However, the law burdening such communications does not infringe the implied constitutional freedom if it is reasonably appropriate or adapted to serve a legitimate end which is compatible with representative and responsible government.

The government included this provision in the bill because it recognised that certain communications and information about government activities that relate to ASIO investigations may, in some cases, be limited by secrecy provisions. However, the government believes that the secrecy provisions are reasonably appropriate and adapted to serve the legitimate purpose of preventing terrorists from launching an attack in Australia and do not therefore infringe the constitutional freedom. I commend this bill to the House. I thank the opposition for its advice that it does not oppose the matter. I hope that it receives a speedy passage in the other place.

Question agreed to.

Bill read a second time.

Mr RUDDOCK (Berowra—Attorney-General) (6.31 p.m.)—by leave—I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.