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Thursday, 17 October 2002
Page: 5385


Senator NETTLE (12:12 PM) —I rise to speak on the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002. I start by saying that the Australian Greens believe that now is the time for us to be showing appropriate mourning and grieving for the deaths that occurred in Bali on the weekend. We think it is the time to focus on efforts to find the perpetrators of this tragedy and to carry out a review of security intelligence services. All of these things the government have either begun or indicated they will be doing.

The Australian Greens do not believe it to be appropriate to be rushing this bill up the government's legislative program. When this legislation was first introduced, it was clearly recognised by the vast majority of society and certainly by the vast majority of parliamentarians in this place as an overreaction to the event of September 11. Since being introduced, this legislation has been sent to two committees: the Parliamentary Joint Committee on ASIO, ASIS and DSD and the Senate Legal and Constitutional Legislation Committee. The joint committee came up with a range of recommendations that the Australian Greens would characterise as tinkering at the edges of an unacceptable bill. The Senate Legal and Constitutional Legislation Committee itself recognised that it had not carried out a rigorous review of this legislation and it simply endorsed the recommendations of the joint committee. There is an important role for the Senate committee to play in examining the detail of this legislation, so the Australian Greens will be supporting the opposition's second reading amendment which proposes to send this amended bill back to that committee.

We must recognise that tinkering at the edges will not improve this legislation. No amendment can alter the fundamental undemocratic character of this legislation, which removes rights that have been enshrined in legal systems around the globe for centuries. The Australian Greens believe we must unequivocally state that no-one should be detained or imprisoned unless suspected of a crime on reasonable grounds or convicted by a court. Even the governments of the United States and the United Kingdom have not gone as far as this legislation in giving their security agencies the power to arrest and detain innocent people not suspected of being involved in any crime. The Australian Greens believe that the existing powers and processes available to the police services and to ASIO under criminal law are adequate to investigate and prosecute any terrorist crimes. The Federal Police can arrest anyone they suspect of committing offences and they can question them for a reasonable time. Anyone who is suspected of being engaged in terrorist crimes is extremely unlikely to be granted bail, so they will be held in custody whilst the investigation proceeds. ASIO can already tap telephones, access computer files and search people's homes. The Greens believe the police and ASIO have the powers and the resources to pursue terrorist crimes.

But this bill would give virtually untrammelled power to ASIO to crack down not only on terrorists but also on ordinary Australians that ASIO say have information that ASIO believe they need. Those people could be friends or family, colleagues, neighbours, doctors or journalists—anyone ASIO believe has information about a person or a group that they allege is involved in terrorism. This bill would enable ASIO to `disappear' these people. That is why eminent constitutional lawyer and academic Professor George Williams, whom others have quoted in this place today, has warned us that this bill will turn ASIO into a secret police force, that this is akin to Pinochet's Chile.

I take this opportunity to go through the recommendations of the Parliamentary Joint Committee on ASIO, ASIS and DSD on this bill as a means of highlighting the fundamental flaws of this bill which cannot be improved by amendment. One of the crucial flaws of this legislation is the intention to give ASIO the power to detain incommunicado people who are suspected of being involved in terrorist activities but who may have information potentially relating to terrorist activities—throwing the net extremely widely. The joint committee has not acknowledged this crucial flaw or suggested a way to amend it, simply because this legislation cannot be amended to remove this flaw; rather, it needs to be rejected outright.

For the first time in Australia's history, this bill intends to give ASIO the power to detain individuals. This extension of ASIO's role from intelligence gathering, by giving it the power to detain, turns it into a secret police force. When this legislation was first introduced, it was designed to empower ASIO to detain people for 48 hours. It then became apparent that—potentially through the hasty drafting of this legislation after September 11—it allowed for an indefinite number of warrants to be issued, effectively allowing for a period of indefinite detention of non-suspects. The joint committee recommended that the period for secret detention of non-suspects should be seven days. It is worth noting that this period of detention which was recommended by the joint committee goes well beyond the original period of detention of 48 hours proposed by the government—assuming, as I do, that the government did not intend for that period of initial detention to be indefinite.

Another flawed aspect of this bill is the refusal to give detainees access to a lawyer of their choice. Through this amended bill, the government is currently proposing that people detained under this legislation have no access to a lawyer for the first 48 hours of their detention and that no lawyer should be present during the granting of a warrant for their arrest. The government is proposing that, after the initial 48 hours of detention, people detained under this legislation have access only to a lawyer from a small pool of lawyers vetted by ASIO and that any individual able to access a lawyer from this small pool of lawyers cannot consult with that lawyer without having an ASIO officer present. It is hardly the sort of fair process that the Australian public expects.

Originally the bill also proposed that people detained under this act would have no right to silence and no defence of self-incrimination, so a person detained under a warrant may not refuse to give information even if it may incriminate them. The joint committee recommended that, if the bill must remove the right to silence, then a person must have protection against self-incrimination in providing information relating to a terrorist offence. Again, the Australian Greens would hardly argue that this recommendation is sufficient to address civil liberties concerns in Australia.

In its current form, the bill also stipulates that a person must not fail to produce any record or thing requested, and if they do refuse to provide such a record or a thing they face five years imprisonment. Aside from the obvious questions about how you can prove that somebody has failed to provide evidence, to have this kind of proposal applying to non-suspects caught by this legislation is clearly unfair.

This piece of legislation when first introduced allowed for the strip searching of children as young as 10 years of age. The committee recommended that no person under the age of 18 should be questioned or detained under this bill. This was rejected by the government that now wants to see in this amended bill a minimum age of 14 and bring in special provisions for children between the ages of 14 and 18. Another recommendation that the joint committee made with regard to this legislation was that a sunset clause should be put in place. This recommendation has also been rejected by the government.

The committee also recommended that the Inspector-General of Intelligence and Security be given the power to suspend an interview being conducted under warrant procedures on the basis of non-compliance with the law or an impropriety occurring. The government also rejected this proposal, preferring to allow the Inspector-General if he or she saw fit to notify a prescribed authority when a breach of the act had occurred and that the prescribed authority could then act after the event if they saw fit. It is hardly an efficient way to deal with a breach of this bill. In particular, its lack of timeliness undermines its efficacy as a safeguard. The fundamental flaws of this legislation simply cannot be amended out. No-one should be detained or imprisoned unless convicted or suspected of a crime on reasonable grounds by a court. I concur with the report of Senator Cooney and Senator Brown in the Senate Legal and Constitutional Legislation Committee that said:

The appropriate course to take with this legislation is to dispense with it.