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Thursday, 17 October 2002
Page: 5387


Senator MARSHALL (12:24 PM) —I thank the Senate for this opportunity to speak on the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 before us today. The bill before the Senate, known widely as the ASIO bill, is an inappropriate overreaction by the federal government. It is inspired by overseas counter-terrorism practices, but it is flawed. We support steps taken to achieve real protection from terrorist attacks. We support the government's initiative to review all of our security arrangements in light of the horrific attacks in Bali. We stand ready to consider any genuine proposals to meet the challenge of terrorist threats, but we do not accept that an appropriate response to terrorist threats is the secret detention of Australian citizens and a denial of natural justice and access to legal counsel.

In many ways the proposed bill, which aims to give powers to ASIO, is one that many a police state would be envious of and goes further than the legislative response to terrorism by governments that have experienced acts of terrorism on their own soil. The proposed bill is inconsistent with fundamental aspects of the rule of law and with core international human rights obligations. It is lazy legislation and it seeks to meet the threat of terrorism with the removal of fundamental rights and freedoms from its citizens and basically fight fear with legislative fear.

The bill before us in the Senate is amended slightly from its original form after serious concerns were raised by the Parliamentary Joint Committee on ASIO, ASIS and DSD. However, the bill still remains far too draconian to have this parliament pass it into law. The scope of the bill enables an extraordinarily vast range of persons to be potentially questioned and detained, even if they are not suspected of committing or preparing to commit an act deemed as a terrorist offence. The legislative process that has occurred since the government first proposed to introduce new laws to deal with the threat of terrorism in Australia and to Australian interests overseas raises grave concerns on this side of the chamber.

This is a government that is prepared to support a bill that would allow adults and children to be detained and strip searched. This is a government that is prepared to allow people to be denied access to anyone outside of ASIO while being detained by ASIO. This Attorney-General is prepared to accept that people may be held indefinitely without charges being laid or even the possibility that charges will be laid. The bill proposes to change ASIO as an organisation that operates as a gathering of intelligence agency that feeds the product of that intelligence into agencies which are charged with the responsibility for investigating potential crimes into some sort of secret police with all the powers that come with it—arrest and detention. ASIO would become a law unto itself.

The powers this government is prepared to give ASIO and the Attorney-General rest in too few hands. The process is not open or accountable and it is not open to public or political scrutiny. This undoubtedly would create a problem as ASIO operates as a secret intelligence gathering organisation and its own operations could be put in jeopardy if the amount of scrutiny required to administer such powers were enforced on ASIO. The government has not thought this legislation through. It has taken over 12 months now to propose legislation that would effectively assist intelligence gathering that would stop any potential terrorist threats to Australia or Australian interests overseas and has come up with a bill that can only be described as draconian and bad policy.

The government has accepted, after substantial public concern, that persons detained may have the minister approve a legal practitioner whilst in detention or being questioned by ASIO. In its original form the bill contained no such measures. That is, if a person were to be detained, they would have no access to legal counsel—a detained person would be held incommunicado. Prior to the amended bill, 34F(8) stated:

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.

The government now proposes to insert in schedule 1, item 24, before subsection (4), an amendment that ensures the person being taken into custody for questioning has the ability to contact an approved lawyer at any time when the person is in custody or detention. However—and as always with this government there is a however, and this one is outrageous—the provision to legal counsel may not apply if the minister is satisfied on `reasonable grounds' that it is appropriate in all the circumstances that the person not be permitted to contact a legal adviser. What the Attorney-General has attempted with this amendment is to put a positive spin—some good PR—on an otherwise almost universally condemned bill. But in reality, the intention of the amendment has been undermined by a clause that allows the minister to prevent a person in custody or detention from accessing legal counsel if he or she so wishes.

The extent of denying Australians fundamental liberties, the deprivation of liberty without charges, through to persons being detained without access to legal counsel or family is an unacceptable standard for any free democracy. Without access to independent legal counsel, proposed section 34J, which is supposed to ensure that a person in custody or detention is treated humanely and is offered respect for human dignity and freedom from inhuman or degrading treatment, is worthless and meaningless. If there is no way in which information about questionable ill-treatment or detention can reach persons or organisations outside of ASIO, there is no practical means to challenge such treatment. The inability of detainees to access legal counsel is in stark contradiction to the UN Human Rights Committee's General Comment on article 7 concerning the prohibition of torture and cruel, inhumane or degrading treatment or punishment. It states:

... To guarantee the effective protection of detained persons ... provisions should ... be made against incommunicado detention ... the protection of the detainee also requires that prompt and regular access be given to doctors and lawyers, and under appropriate supervision when the investigation so requires, to family members.

The proposed bill is clearly in contradiction to those comments. The fact that it took the Joint Committee on ASIO, ASIS and DSD to raise concerns that the bill in its original form contained no provisions for access to legal counsel demonstrates this government's complete disregard for international law and human rights. As I mentioned earlier, while the government now makes provisions in the bill for a detained person or persons to have access to a prescribed legal practitioner, so too does it contain provisions which seek to dismiss the fundamental, internationally recognised human right of having access to legal counsel while in detention or being questioned, simply on the basis of the minister's discretion.

As I have previously mentioned in this chamber, this government is all too easily prepared to deny its citizens the basic human right of access to legal counsel when being held in detention. The cases of Mr David Hicks and Mr Habib, which I have previously raised in this chamber, demonstrate this position perfectly. Mr Hicks was held in detention in Guantanamo Bay for over nine months before being moved to Camp Delta on 25 May, where he remains. Mr Habib was arrested in Pakistan last year and has been detained in Guantanamo Bay ever since. To date, neither of these two Australians has been charged with any offence under international law, Australian law or US law, yet they remain in detention indefinitely. Since being held in detention, neither Mr Hicks nor Mr Habib has had any access to legal counsel or family members. Is this the situation we want to emulate in Australia: people held in detention without conviction or even charge? Guilt presumed without trial? I do not believe so.

If it is not enough that the government has proposed a bill that allows a person or persons to be detained without charge and without access to legal counsel, the bill also states that the government is content to have a person or persons detained for a period up to 168 hours. The bill as amended states that a direction under proposed section 34F(1) must not result in `a person being detained for a continuous period of more than 168 hours starting when the person first appeared before a prescribed authority'. One hundred and sixty-eight hours is equivalent to seven days, starting from the moment when the person first appears before a prescribed authority for questioning. It would be likely that a person would be detained for some time prior to being questioned; therefore, if the parliament were to pass this bill it would effectively allow ASIO to have a person disappear from all communication and knowledge for a period that exceeds a week. The ability of ASIO to detain a person for such a period without charge is in clear contradiction to the United Nations Human Rights Committee's General Comment on article 9, which requires the prompt appearance before a judicial officer inside a period which does not exceed several days.

The term `several days' has been defined in cases dealing with such excessive detention. In the case of Jijan v. Ecuador, the Human Rights Committee found a violation where the person was held for five days without being brought before a judge. The European Court of Human Rights found in the case of Brogan v. The United Kingdom that four days and six hours was too long to satisfy the requirement of promptness. I ask the minister and the government what authority they claim to have to disregard these judgments. What is the reasoning for dismissing these judgments? I put it to the government that it has dismissed these judgments for, if it has not, the minister and his staff are failing to adequately examine the legislation's standing within the international community with respect to overseas test cases around these issues.

These judgments recognise that citizens must be afforded their human rights in all circumstances. The UN has found that the term `several days' shall not exceed five days; the European Court of Human Rights found that four days and six hours was too long to satisfy the requirement of promptness. But the Australian government proposes that seven days is acceptable. The opposition says it is not. While these respected institutions have found that between four and five days is an excessive amount of time to hold citizens that have had no charges laid against their names, this government is demonstrating again that it will disregard overseas practices and legislate to the extreme. It is never enough for this government to recognise how law is progressing overseas and to respect that these laws have been tested and ruled upon by respected institutions.

What this bill demonstrates is that the government is all too easily prepared to disregard due process and human rights. The government cannot claim that it is not aware of the erosion of rights and liberties it proposes to advocate. The Attorney-General has effectively admitted that he is satisfied in advocating for such an erosion. In May, the Attorney-General stated, as he attempted to justify advocating such an erosion of rights and liberties:

We believe the community is prepared to make sacrifices of individual civil liberties in order that the community generally is protected from those threats.

This statement, which the Attorney-General made on behalf of the government, demonstrates, as I stated earlier, that the major answer to the threat of terrorist acts that this government is able to arrive at is the removal of rights and civil liberties of Australian citizens.

The Australian Labor Party do not agree that the strangling of civil liberties is acceptable in order to achieve the desired protection—which we support—against acts of terrorism. Those on this side of the chamber will not accept that the `sacrifice', as the minister would put it, of individual civil liberties is satisfactory. Those on this side of the chamber are not alone in that thinking. It was former Prime Minister Menzies who, in his second reading speech when introducing the National Security Act 1939, stated:

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

The government should think long and hard about those words by one of their own icons. This bill attempts to advocate such a tragedy. It seeks to remove the liberty of individuals in Australia and, in the words of former Prime Minister Menzies, it would be `the greatest tragedy' that a parliament would seek to remove such rights and liberties during the war on terror—a battle which seeks to ensure that individuals are able to appreciate such rights and liberties without the fear of being injured whilst appreciating them.

Academics and community groups have expressed grave concern over the passage of such a bill. Professor George Williams has expressed concern that the ASIO bill would establish part of the apparatus of a police state. Professor Williams has described it as a law that would not be out of place in former dictatorships such as General Pinochet's in Chile. If democracies allow the erosion of fundamental rights that have been accepted as just and fair for many decades by our citizens and for our citizens then we are allowing the tragic events of terrorism to be victorious. I reject this bill and encourage the Senate to reject it.

Debate (on motion by Senator Coonan) adjourned.