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Tuesday, 3 December 2002
Page: 7078


Senator FAULKNER (Leader of the Opposition in the Senate) (11:29 PM) —I would like to take this opportunity to thank the Senate Legal and Constitutional References Committee and its staff for their hard and thorough work in preparing the report into the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, which has been tabled tonight. I have only had a chance to quickly look through the recommendations of the committee. They look sensible and balanced. I particularly welcome the fact that they appear to be largely bipartisan. I think everyone agrees that our response to the threat of terrorism has to be strong, effective and consistent with democratic values and freedoms. However, as it stands, the ASIO bill has the balance wrong. The opposition is persuaded that the intelligence gathering powers of ASIO should be enhanced, but not through a police-like detention regime. ASIO can do its job properly and gather vital intelligence without having to detain people for extended periods. We propose a questioning regime, not a detention regime, and we propose such a regime with strong safeguards. The regime must be broadly consistent with other questioning regimes employed by Commonwealth and state law enforcement agencies such as royal commissions, the NCA and state crime commissions. After all, why should ASIO have weaker powers to interview people in relation to terrorism offences than those bodies have in relation to corruption or corporate crime?

I would like to take the opportunity now to briefly outline in more detail Labor's position on the ASIO bill. The first issue is in relation to the idea of a questioning regime, not a detention regime. Warrants for questioning should be initiated by the Director-General of Security, who should seek the Attorney-General's consent to apply for the warrant. The Attorney-General must be given a draft and supporting material. Before giving consent, the Attorney-General must be satisfied that the warrant is absolutely necessary and that questioning the person would be more effective than other methods of collecting intelligence. All questioning must take place before a prescribed authority. The opposition believes that a panel of retired senior judges should be established to serve in that role. They could issue warrants, supervise questioning and rule on matters raised by ASIO during questioning. Using a panel of retired judges who have, for example, 10 years service on a superior court has the advantage of removing serious concerns over the constitutionality of using current federal judges as the issuers of warrants, while boosting community confidence in the accountability of the new regime.

It is fundamental to the opposition that this questioning regime should not apply to anyone under the age of 18. Children should not be subjected to ongoing questioning by an intelligence agency. The government proposes the questioning regime only apply to 14- to 18-year-olds if they are suspected of offences. That is, the government wants children questioned for up to seven days by ASIO. Frankly, that is unacceptable. The PJC unanimously recommended that the provisions of this bill not apply to anyone under 18 years of age. It is more appropriate that, if anyone between the ages of 14 and 18 is suspected of committing a terrorist offence, they should be arrested, interviewed and dealt with by police with the full protection offered to children under the criminal law. As usual, ASIO should be able to access information from those interviews.

The second issue is in relation to questioning. We have listened carefully to the evidence presented to the Senate committee by agencies, lawyers' associations and community groups. The opposition has come to the view that, with appropriate and strong safeguards, ASIO should ask the questions during interviews. Labor supports five significant safeguards for questioning. Firstly, the questioning would be supervised by an experienced retired judge. Secondly, the warrants would be for a limited period and for questioning only. Thirdly, the person being questioned would have a lawyer. Fourthly, the AFP would be responsible for all the logistical arrangements. Fifthly, the interviews would be videotaped.

With these safeguards in place, it is not only reasonable but appropriate that questioning for intelligence over possible terrorist activity is done by experts who know their brief and whose responsibility it is to investigate such matters. The opposition strongly believes that the legislation must include the maximum time a person can be questioned and provisions ensuring that, once questioning is finished, a person is free to leave. The time for questioning under the warrant should be broadly modelled on the investigation periods set out in the Commonwealth Crimes Act. It is imperative that the time limits should not be such as would turn a questioning regime into a detention regime. We must remember that we are dealing with people not suspected of any criminal offence, and they should not be treated worse than suspects of very serious crimes.

The third issue that I would like to touch on is the written statement of procedures governing questioning. The opposition supports the proposed process for developing the statement of procedures governing questioning, but that statement should be a disallowable instrument. The bill should include a schedule of the matters to be included in that statement. Without going into detail, the schedule should include items such as warrant issuing procedures, details of the prescribed authorities' responsibilities, details of the conduct of interviews—including time breaks in questioning, interview methods, means of recording and so forth—and, importantly, the entitlements of a person while in custody, such as access to translators, meals, rest periods and privacy.

The fourth issue I would like to touch on is what uses can be made of information. Like under other questioning regimes, such as royal commissions, the NCA, state crime commissions and ASIC, people being questioned should not have the right to silence, but anything they say cannot be used against them. Information obtained can only be used against others. That is, there is use immunity but not derivative use immunity for the information.

The fifth issue is the right to have lawyers. A person being questioned should have the right to legal representation of their own choice and a right to private consultation during questioning. The opposition accepts that certain lawyers may prejudice an investigation and, provided the prescribed authority is satisfied, a person could be denied their lawyer of first choice. In such circumstances the prescribed authority should assist the person to locate another lawyer. Additionally, if there were a real and immediate threat to public safety, questioning could commence before the arrival of a person's lawyer. The prescribed authority would have to be satisfied of this and of the fact that the other four safeguards that I mentioned earlier would be in place for the short time period before a lawyer arrived.

Finally, I want to touch of the issue of a sunset clause. Consistent with the unanimous recommendation of the PJC, there should be a sunset clause in this bill. These are significant new powers for ASIO, justified by the current enhanced threat of terrorism. We should not be giving ASIO an open cheque. It is appropriate that these powers be given a time limit and it is appropriate that the government of the day be required to make the case to parliament for their extension. Our most important defences against terrorism are comprehensive and effective Commonwealth and state laws enforced by properly resourced police, security and intelligence services.

ASIO is our most important security and intelligence agency. But Labor is deeply concerned that the secret detention regime proposed by this bill would undermine ASIO's status in the community and its ability to effectively gather intelligence. Our approach is constructive and principled, and I urge the government to respond positively to our proposals and to the recommendations of the Senate Legal and Constitutional References Committee.