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Thursday, 17 October 2002
Page: 5373

Senator GREIG (11:08 AM) —I think it is important in discussing the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 today that we do deal with the issue of timing. It is worth noting for the record that this bill, while it was due to come up in this session, was not scheduled for debate until at least next week. It is fair to ask why it is that all of the legislation proposed for this morning was at the eleventh hour last night removed and replaced with this legislation. While I accept the government's right to schedule its agenda as it chooses, I do think we need to question this. I think it is reasonable to conclude that the government is keen to be seen to be doing something about terrorism in the wake of the appalling tragedy that we have all experienced and witnessed over the last few days, but there is a danger in that. There is a danger in responding to tragic events in a knee-jerk way; there is a danger in exploiting understandable fear, shock and anger by perhaps trying to coerce a parliament in progressing legislation that it might not consider in more peaceful times.

Certainly this event in Bali was appalling and tragic and it does appear that it was an act of terrorism, but it is quite wrong, I think, to exploit the shock, grief and fear that people are feeling. In dealing with legislation of this nature we need cool heads and clear thinking and to address the issues at a time when people are not so focused on understandable anger and concern, not just about terrorism but about instability in the region. For that reason we Democrats will be supporting the Labor proposal that this bill go to committee—and I will talk a little bit more about that later.

The timing of the bill is more symbolic than practical. The sad reality is that the passage of this legislation, if that had eventuated, would have made no difference to the events in Bali. I think it is fair to ask whether any law or laws can stop terrorism, let alone domestic laws that would have no jurisdiction in Indonesia. We must also question why there is a perceived need for it at this time when there is uncertainty around our surveillance powers and surveillance operations—whether that be through questions raised about the SIEVX refugee boat incident, the so-called `children overboard' matter, or more recent questions raised in the last few days about intelligence surrounding prewarnings of the Bali tragedy.

Following the September 11 terrorist attacks in New York and Washington, many countries around the world reacted very swiftly with laws—or at least the promise of them—to address terrorism, and they included the United States, Britain and of course Australia. In our jurisdiction we witnessed that through the introduction of a suite of five antiterrorism bills, all of which caused considerable community concern and outcry, largely around the principle of civil liberties and the rights and freedoms that we enjoy. There was a very real and anxious concern overwhelmingly expressed by the organisations and individuals which came before the Senate committee hearing investigating that suite of bills about hastily introducing laws we might regret in the future.

At the end of the day I think it is worth complimenting the government for ultimately accepting significant amendments to that legislation, some of which we Democrats supported. Ultimately we opposed four of those five bills on the grounds that we had deep concerns about the definitions of terrorism and terrorists and the way in which that legislation might be used in the future if it were not more finely tuned. It is worth noting that one of those bills from that suite of five which we did support was in fact a bill entitled `Suppression of Terrorist Bombings'. It is clear that people who came before the committee felt anxious about any loss of civil liberties and that any extraordinary government power which might have been introduced through that legislation could be abused or misused to the detriment of the community.

We were not convinced that the definitions and powers that ultimately were proclaimed—and it is worth noting that the legislation we are talking about only came into effect very recently—were appropriate and adequately allowed for the natural justice which we felt ought to have applied, yet now we find that the Prime Minister, Mr Howard, has said, only in the last 48 hours, that we need to review our domestic antiterrorism laws. I find that quite extraordinary given that they have only very recently been cemented into our legislative framework. I think that was a knee-jerk response to the tragedy of the Bali bombings. It was only two days ago—I think it was Monday—that Senator Faulkner, on behalf of the opposition, asked a question of Senator Vanstone, who was that day representing the Attorney-General, as to what form this review would take: who might be involved, how it might be conducted and what degree of public input would be invited and allowed for. Minister Vanstone, representing the Attorney, was unable to answer that. To be fair, she was just acting in an interim position, given the absence that day of Senator Ellison in Indonesia. But that suggested perhaps that the government, at least as of Monday, had not really given consideration as to exactly how the review would be constructed and conducted.

How can we possibly review legislation that was only very recently proclaimed into law? What possible connection could there be between the slaughter in Indonesia and Australian domestic security measures? We Democrats can support a review but not if that is simply code for reintroducing or attempting to reintroduce some of the more draconian aspects of that suite of antiterrorism bills that were removed in the first instance. I think the Prime Minister has used the words `review the legislation with a view to beefing them up'. If `beefing them up' is code for attempting to reintroduce those aspects which were originally rejected by the Australian community and the parliament, we would have no part of that.

Yet we have a bill before us today which would allow federal authorities to remove someone from the street or their home simply because they think they might be able to provide useful information and not because they are suspected of having committed an offence. In relation to this, Professor George Williams from the University of New South Wales—and it is worth noting that he is one of the nation's better known constitutional academics—has said, `This bill is inconsistent with basic democratic and judicial principles, because no Australian should be detained without a trial or for a bail hearing.' In fact, Professor Williams, who is not noted for his exaggeration, likens the bill to something out of Chile under the regime of Pinochet.

While that might seem dramatic, it was my experience only yesterday, when discussing this issue on talkback radio in New South Wales, that the radio presenter said to me that this would not happen, that the Australian government would not introduce legislation to allow for the detention of people for up to seven days and that it would not introduce legislation that would ensure that those people would have no right to a lawyer for at least 48 hours. It was all I could do to convince him that that was precisely what the government was doing; yet I was significantly challenged on that point. There seems to be a sense of disbelief, at least in some quarters in the Australian community, that this is the path that the government is travelling on.

In his brief, the Attorney has argued that the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 would enhance ASIO's ability to gather intelligence to help prevent and deter terrorism. The Attorney has said that the bill establishes a warrant process to allow ASIO to question a person who may have information relating to a terrorist attack. The bill was introduced into the House of Representatives on 21 March this year and was referred to both the Senate Legal and Constitutional Legislation Committee and the Parliamentary Joint Committee on the Australian Security Intelligence Organisation, Australian Secret Intelligence Service and Defence Signals Directorate. The parliamentary joint committee then reported on 5 June 2002 and the Senate committee reported on 18 June 2002.

The parliamentary joint committee made a number of recommendations for changes to the bill, with which the Senate committee agreed. Worth noting, too, is that the joint committee is a bipartisan committee in the true sense of the word. It has representatives from only the coalition and Labor; there is no crossbench representation on it. Yet, in spite of the fact that government members strongly advocated significant reform, which is sometimes unusual from a committee perspective, the government has agreed to those recommendations, indicating at the time that it understood that compromise was essential, given the community anxiety around the suite of bills which preceded the introduction of the ASIO legislation. The government amendments to the bill responding to the recommendations of the committees were passed by the House of Representatives, and a separate document outlining the government amendments has been provided by the Attorney.

The Attorney has also notified the parliament that in terms of access to legal representation—an issue with which the Democrats have significant concern—all people detained under a warrant will have the right to contact an approved lawyer; that is, a legal practitioner of at least five years standing who has been approved by the Attorney-General following a security clearance. There was considerable concern during community debate and investigation into this issue, and people overwhelmingly believed that anyone detained under this legislation really ought to have the right to legal representation. It seems that a pool of lawyers would be provided to a person detained from which they could choose. The Democrats had some considerable concern around the notion that that may remove accountability and perhaps objectivity. It is a bit like Centrelink or some other government agency providing their own doctor or medical expert to assess a person's eligibility for welfare payments. There can sometimes be a perceived lack of objectivity in those situations. I understand that the Law Council of Australia has expressed enthusiasm on its part for being a part of the process and contributing to the process of vetting and suggesting which lawyers might be appropriate in those situations. On the face of it, that would seem reasonable.

The Attorney has also said that contact between legal representation and those detained may be delayed for up to 48 hours in exceptional circumstances and only in relation to adults. To delay access to a legal practitioner, the Attorney-General must be satisfied that it is likely that a terrorism offence is being or is about to be committed and may have serious consequences. The power to delay access to a lawyer can therefore only be exercised to protect the community from imminent terrorist danger. Then, after 48 hours, all people will have the absolute right to contact an approved lawyer. Lawyers will be subject to special rules during the period their client is subject to a warrant. This is necessary, it is argued, to ensure that the very sensitive information that they would be exposed to is appropriately protected.

The issue of children was a difficult and sensitive one in relation to community concerns around this bill also. It is worth noting that the bill does not apply to people under the age of 14, although as I understand it that was not originally the case. If the prescribed authority considers that the person brought before it is under 14, it must order that the person be released. We would welcome that. The Attorney-General has argued that there are legitimate reasons for the bill to apply to people between the ages of 14 and 18. I for one would like to be convinced of that before giving consideration to supporting that notion. I do have some problems with the notion of 15-, 16- and 17-year-olds being detained under these circumstances. The Attorney-General has argued that, for example, there are known instances of persons under the age of 18 being actively involved in terrorist activity, including suicide bombings. I understand there is evidence to suggest that that is the case overseas. I am not aware of any suggestions that that is the case domestically. However, the government has recognised the importance of protecting the rights of young people to some degree, and a warrant will only be able to be issued in relation to persons between 14 and 18 years of age in limited cases, and these will be subject to strict safeguards.

In terms of those safeguards, the Attorney-General has argued that the bill would ensure that the powers are properly exercised. We Democrats would argue that that statement does not stand up to scrutiny on one basic premise, and that is that no safeguard, no objectivity and no accountability can be ensured if a person or persons are being detained for 48 hours with absolutely no access to legal representation and without their family, friends or employer knowing where they are. This is not an aspect of the legislation that we could support. However, we do agree that the proposal by the Labor Party for further committee and community investigation is warranted and welcome. Labor is proposing that the committee to investigate the legislation and report by 3 December should be the Senate's Legal and Constitutional References Committee. I welcome that, being a member of that committee and contributing to it.

Perhaps the two most important aspects of what is being proposed in terms of committee investigation are as follows. The first aspect concerns the potential to develop an alternative regime in which questioning to obtain intelligence perhaps relating to terrorism is conducted not by ASIO—an organisation which never before has had these powers—but by the Australian Federal Police, including appropriate arrangements for detention of terrorist suspects and the questioning of people not suspected of any offence. There is also the question proposed in this amendment by the opposition that we should consider whether the bill in its current form, or perhaps amended, is constitutionally sound. There is some suggestion that elements of it may not be. That too is fully worthy of investigation and I for one would certainly welcome input from Professor George Williams on this matter once again.

Fundamentally we need to ensure that the community is convinced that there is no secrecy surrounding this legislation, and that the community is convinced that it has appropriate input to discussion and debate around it. The one strong thing that struck me from all of those people that came before the previous committee dealing with the suite of five bills was the gratitude that many hundreds of them felt for simply having the opportunity to have their say on what was very controversial and contentious legislation—to the point where a further hearing was held, I think in Sydney, in a public forum where people could simply get up and speak for two or three minutes to express an opinion and not necessarily engage in debate. We wanted to ensure that everybody who wanted to be heard could be. When you are dealing with espionage or, in this case, an intelligence or, if you like, a spy agency, there are considerable community conspiracy theories surrounding the matter. The only way to alleviate people's anxiety about that is to have openness and transparency. It is appropriate that we engage in further community debate on this, but more appropriate that we encourage submissions and invite comment, and it is imperative that any legislation dealing with this matter in relation to security services has the support of the Australian people, because without that there will be ongoing community concern. Let us alleviate that by engaging in the process.

We Democrats look forward to the committee process which I hope will eventuate from this. We will contribute to it. We continue to have concerns about the notion of a pool of lawyers being appointed by the government, but we are open-minded about that. We would not, under any circumstances, like to see the situation where any Australian citizen was denied legal representation under such circumstances, let alone for 48 hours. We have ongoing concerns with the notion that 15-, 16- and 17-year-olds might find themselves in this situation. In an overall sense, we are very supportive of appropriate antiterrorism measures. We understand the community concern in this regard, but fundamentally the principle for us is never eroding civil liberties, and ensuring that rights are balanced with responsibilities. Let us not erode our democratic freedoms while trying to protect them.