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Thursday, 17 October 2002
Page: 5364


Senator STEPHENS (10:15 AM) —I rise today to speak about the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, which of course we all know was originally proposed as part of the government's legislative response to the tragic events of September 11 last year. The events of this week have of course brought these issues again to the fore.

Can I say at the outset that any response to terrorism must be very carefully thought out. Terrorist attacks over the past year, and particularly over the past week, have been grave and they have changed the world's political landscape quite significantly. Australians have not faced a threat like this before; therefore our responses to this threat must be proportionate to its gravity. They certainly must not be ad hoc and they must not be politically motivated. They must consider what it is they are protecting and find the best way to protect it—not the first way that comes to mind, certainly not the most dramatic way or the most publicity effective way but the best way.

At the outset, the question we must ask is: what is it that our antiterrorism legislation is trying to protect? It is to protect Australian citizens from threats to their lives and their freedom. It is intended to enable Australians to live without being fearful of events that they cannot control and it is to make sure that Australia has the legal provisions for taking part in international efforts to stop terrorism.

The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 is not the best way to achieve any of these protections because it has the capacity to become as great a threat to our democracy as that of terrorism. It goes against the vital principles of the rule of law that keep us safe. People have been saying this since World War II, and even before. Prime Minister Menzies said in 1939:

The greatest tragedy that could overcome a country would be for it to fight a successful war in defence of liberty only to lose its own liberty in the process.

It is to be expected in a time of crisis in national security that some rights be derogated. But any derogation of citizens' rights must, according to the United Nations High Commissioner for Human Rights, use precise criteria, not confer unfettered discretion on those charged with their execution, be necessary for public safety or order, conform to the principle of proportionality, and be appropriate to achieve protective function and be the least intrusive instrument amongst those which might achieve that protective function.

The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, as it stands, fails on all these counts. Its criteria are anything but precise and could allow for gross abuses of power. The discretion that is conferred upon ASIO and its prescribed authorities could be described as unfettered, particularly considering the fact that this power is in the arm of the executive and not the judiciary. Prescribed authorities have the power to issue warrants and must be members of the Administrative Appeals Tribunal. These are non-judicial appointments with fixed terms, and reappointment is determined by the government. In other words, these are political appointments who should not have the power to issue warrants to detain people in secret.

Under the current provisions of the ASIO bill, a person can be detained without having committed an offence. Detention of nonsuspects is unprecedented in Australia and is not permitted under equivalent legislation in the USA, Britain or Canada. This also amounts to arbitrary action by the executive arm of government. Regardless of how much trust we might have in the current government, there must be protection against future possible abuses of power. It is lunacy to set down the provisions that would enable Australia to effectively become a police state—a state like those that we condemn—simply trusting that it would never happen to us.

The fact that detention can be incommunicado and that a person can be denied access to a lawyer for up to 48 hours is also a serious concern. Proposed section 34F(8) states:

A person who has been taken into custody, or detained, under this Division is not permitted to contact, and may be prevented from contacting, anyone at any time while in custody or detention.

Incommunicado detention has been widely condemned as a serious human rights violation that often leads to other abuses. Among the recommendations of the parliamentary Joint Committee on ASIO, ASIS and DSD that were not taken up by the government was that the bill be amended to provide for legal representation for people, with a framework for the appointment of security-cleared lawyers. The government proposed an alternative model whereby a person must be provided access to a security-cleared lawyer after 48 hours of detention. This 48-hour period without a lawyer is simply unacceptable, as is the situation of a person being unable to consult with their lawyer, even if he or she is security cleared, without the presence of an ASIO officer. A fundamental principle under international standards requires governments to ensure that all those arrested, detained or imprisoned have the right to communicate with a lawyer in full confidentiality. This 48-hour period without access to a lawyer is an unnecessary provision. There are ways of providing legal representation without compromising an investigation: for example, having a list of independent court appointed lawyers or a list of security-cleared lawyers who can be given immediate access to a detained person. The presence of a neutral third party such as a lawyer places real constraints on the ability of the authorities to treat detainees in any way they want. It is an important safeguard, without which this bill should not be passed.

Proposed section 34 creates offences to do with failing to give information and failing to produce a record or thing as requested by an ASIO officer. The penalty is five years imprisonment. There is a safeguard of sorts in clauses that state that the offences do not apply if the person does not have the information, record or thing. However, the evidential burden is explicitly placed on the defendant. In other words, the onus of proof is reversed. It is up to the accused to prove that they are not guilty of withholding information, which is absolutely contrary to current standards of law in Australia. Linked to this is the right to silence, which is denied to those detained under this legislation. This is vital to the important concept that the prosecution must prove guilt beyond reasonable doubt.

The committee recommended—and sensibly—that this legislation is not to apply to children under the age of 18. The government has proposed that it will not apply to children under 14 and that children from 14 to 18 years of age can be detained only if they are under suspicion and have a lawyer and a parent or guardian present. This takes no account of the usual distinction under the law in relation to detaining children. Considering the breadth and the extraordinary nature of the new powers proposed to be given under this legislation, the committee also recommended that protocols be developed to govern custody, detention and the interview process and that the act not commence until the protocols are developed and in place. The government has said that the exercise of powers under the act will be delayed until the protocols are in place but that the commencement of the bill will not be delayed. These protocols are vital to ensure that there are standards against which ASIO officers can be measured.

This bill proposes to grant ASIO powers that usually reside in the police force. If ASIO is to be granted police powers, it should be subject to the political and community scrutiny and controls that would apply to any other police force. This would be somewhat difficult in relation to ASIO, considering its primary role as an intelligence-gathering organisation. Community scrutiny and controls would have a worrying impact on the whole secrecy issue. In order to ensure that this legislation is proportionate and appropriate to the threat that we face, there should be, as recommended by the committee, a three-year sunset clause. Without such a clause this bill will not specifically target the current terrorist threat. As George Williams has argued, it will bring about a permanent change to law enforcement in Australia and will entrench the notion that the detention of people who may have useful information is an appropriate tool for the gathering of information about criminal activity. The ASIO bill is not about detaining terrorists; it is about detaining Australians who might have information about terrorist activities. Detention is not the only way to obtain this information and I do not think it is the best way. The United Kingdom's Terrorism Act 2000, for example, imposes on citizens a positive obligation to disclose information which he or she knows or believes might be of material assistance regarding an investigation into terrorist actions.

This legislation would effectively create a shadow legal system, with none of the legal safeguards of our existing one. It looks like an attempt to allow detention that would otherwise be illegal in Australia and to remove the legal remedies that would usually be open to a person detained in this way. We might ask ourselves: to what extent are these provisions necessary to protect Australians from terrorism? Are there sufficient safeguards? Is this the best way? Any response to the threat of terrorism should have human rights as its unifying objective. This debate has polarised security and human rights, which is completely inaccurate. Human rights standards constitute the bare minimum of standards necessary to protect the safety and integrity of individuals from abuses of power. Human rights standards are not simple legal niceties. Security and human rights do not have to be inconsistent. Freedom should be built into our concept of national security. True security should be based on respect for human rights. We should not join terrorists in treating them as dispensable. This is the test of how well we are responding to the threat of terrorism. The real challenge is to create effective legislation that protects our citizens from abuses of their rights. The ASIO bill, as it stands, fails this test.