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Wednesday, 4 December 2002
Page: 7130


Senator BOLKUS (12:59 PM) —I rise today to speak on the report of the Senate Legal and Constitutional References Committee into the Australian Sec-urity Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, which was tabled in this place late last night. I would like to make some—


The ACTING DEPUTY PRESI-DENT —My apologies, Senator Bolkus.


Senator BOLKUS —I was not going to let you forget it at some later stage.


The ACTING DEPUTY PRESI-DENT —I am sure you would not.


Senator BOLKUS —I could be confused with many in this place.


Senator Forshaw —You've been called worse!


Senator BOLKUS —I could be called worse, that is right. But I deliberately went on a diet a few years ago, and I thought that I had some success. I wish to speak on the report that was tabled late last night of the Sen-ate Legal and Constitutional References Com-mittee on the ASIO legislation. I would like to make some comments that I would otherwise have made on the tabling of the report but for the fact that we are in the last two weeks of parliament and that opportunity has not arisen before now. The committee report comes at the end of a short but ex-haus-tive process. The reference was passed onto the committee some six weeks ago by the Senate, and it was a reference into a major piece of legislation. In the interim six weeks, there were not only six long hearing dates, but also an endless number of private meet-ings. It has been a comprehensive process, and I think that the process and the report, in particular, provide a solid foundation for the parliament to consider this legislation into the future. But let us not underestimate the controversial nature of the legislation that the committee was inquiring into. This legislation is, in many ways, unprecedented legislation which demands, and in fact deman-ded during the process, serious attention. It demands close critical analysis of a whole range of complicated legal issues and it also de-mands an appreciation of changing security demands in the new environment which has befallen the world over the last 12 months or so. For me, this has been one of the few examples where senators have, in essence, shed their political guernseys and approached the task and assessed the subject before us.



Senator BOLKUS —As far, of course, as that may be possible, Senator Forshaw. But I think that in this particular case, senators had real issues that they had to address, and those issues were addressed on their merits, as I said, with all people having shed their political guernseys in approaching the legislation.

On both sides of the Senate, in the evolution of this reference, individuals have found themselves making recommendations and taking positions that they would not necessarily have started with at the start of the process. The recommendations that senators from both major parties have made are not in line with the starting position of their respective parties. It is good to see, from my side of parliament, that Senator Faulkner has signalled an indication to pick up the report's recommendations, even to the extent that they may have contradicted some pre-existing positions taken by the Labor Party. As I said, the unanimity expressed in the rec-om-mendations of this report, together with the substantive material in the report, provide a solid basis for further consideration—an out-come for the legislation that will be before the Senate over the next 10 days or so.

It was not an easy issue to focus on because of the highly charged environment in which this legislation and this nation find themselves at the moment. On one side—I suppose on the left side of politics—we have the traditional distrust of ASIO. ASIO is the perennial bogyman in political life and, as such, there is a real capacity for misconceptions to be bred not just about the role of ASIO but also about the sorts of extra functions that the parliament is considering giving ASIO. It has not been helpful that those misconceptions have, I think, blurred the thinking of a number of people in the debate. To them I say, `We understand why you have those concerns, but we can't forever hide behind the attitudes and sentiments that we developed in the sixties. The world has changed and it is important to see this nation, the policymakers of this nation and the role of ASIO in that new environment.' On the other hand, what was not helpful was the climate of fear and distrust of fellow citizens, which impacts enormously on public debate, and national debate in particular, on issues such as this. These factors do not help rational debate, but I think that it is fair to say that, if anyone was to read the report of the committee, they would come to the conclusion that the committee was able to put these sorts of environmental aspects aside and focus on some pretty important fundamental issues.

As I said, the committee process was comprehensive and exhaustive. We had over 400 submissions in a short period of time. It has to be recognised that all but the submissions from government agencies criticised the legislation, and they criticised it trenchantly and, I must say, forensically. From one-page submissions to theses, in essence, the committee was confronted with the broad range of issues. I do not want or seek to identify an exhaustive list of important and influential submissions. There was an endless list of that sort of submitter. But organisations from the Law Council to individual citizens found the opportunity to put their views to us. We had advice from people from universities and from people in the community who could very well see themselves as being those targeted by this legislation. For instance, the voices of Islamic communities, nationally as well as those from Sydney and Melbourne, were considered by the committee. People from those communities made solid and well thought out submissions. We had submissions from well-experienced people like Gavan Griffith, the former Australian Solicitor-General, who made some quite telling points and advised the committee on the basis of experience he had in cases before the High Court. We also had organisations such as the Public Defenders Office of New South Wales and similar community legal centre structures in Victoria who gave the committee advice from the perspective of the on-the-ground, practical solicitor or barrister who would have to handle the impact of this legislation.

It was not easy legislation. This has been controversial legislation. The fact that it is controversial is not something that has been generated during the course of this inquiry. This inquiry follows a direct parliamentary committee report—a unanimous report from that committee—which raised some fairly fundamental concerns in respect of the legislation that is being debated by the parliament. It was interesting to hear the chair of the committee, Mr David Jull MHR, make some comments urging sober consideration of the Senate committee's report earlier this morning. In this climate, it is important for the Attorney-General—the chief law officer of this nation—to take his responsibilities as the chief law officer seriously and make a sober assessment of the report and the recommendations of that report. A knee-jerk reaction is not enough and has not fulfilled his responsibilities, as we saw in the early hours of this morning. It is important for the Attorney-General and his department to recognise that this legislation does seek some way to accommodate the government but, more importantly, does so within the spirit, history and tradition of the Australian democratic system of government.

I would like to thank my colleagues. I think that it is important in this particular instance to thank not just the staff but also colleagues who participated quite constructively in this. In particular, I would like to thank the deputy chair who spent hour after hour in the early deliberations on this legislation with the secretariat and me. I think all colleagues committed themselves to this process with enormous enthusiasm. I would like to thank the staff of the committee: Peter Hallahan, the secretary; Louise Gell; Noel Gregory; Rebecca Eames; Michelle Lowe; the administration staff; and a specialist staffer whom we adopted for this process from the Parliamentary Library, Nathan Hancock. They put hour after hour of not just physical application but also enormously sophisticated and high-quality mental application into this process. I suppose in thanking them I should also thank their families who have spent much of the last couple of weeks without their spouses and parents while they were deliberating on this report. I have also got to thank, I must say, government departments— the Attorney-General's Department, the Aust-ralian Federal Police and ASIO—that came back a number times. I think ASIO came back to us five times with the Attorney-General's Department to help the committee in its deliberations.

There were probably two substantive threshold issues which were the driving force for the legislation. In short, the stated objective of the legislation was to enable government agencies to extract intelligence information that may substantially assist in the investigation of a terrorist offence and to ex-tract that information with the main objective of avoiding that terrorist threat becoming reality. The information to be sought is not directed to be sought from persons suspected of being offenders, being terrorists, or being in-volved in a terrorist offence. The target people under this legislation are very much those who may have intelligence or knowledge, but who are not suspected of an offence. That is why this legislation is a bit different from the raft of legislation already available to government agencies. As I said right from the start in respect of this particular point, both major parties have acknowledged that this objective—one identified by the agencies and restated by the government—needs to be satisfied, and that objective was unanimously accepted by the committee.

The second threshold point and major structural point was that, once you recognise there needs to be a capacity to gather that intelligence, who is the best agency to perform that function? Here we were met with a number of options. People put to us a new ACCC or a royal commission model, although I think it is fair to say that all members of the committee thought that was an excessive response to this particular situation. Another model put forward by submitters was the UK or Canadian model with the possibility of developing the offence of having knowledge but not imparting that to agencies. We thought, firstly, that that took the non-suspect into a realm that a particular person should not be in and, secondly, that it was not conducive to distilling the information. That course was not accepted.

Then it came to a question of competing agencies—AFP or ASIO. On the one hand, should we give the function to ASIO? It was not a function that ASIO traditionally conducted. But in recognising that it was not a traditional function, we also recognised that they had the expertise and the background intelligence knowledge. By giving it to ASIO, there would be enhanced accountability processes available to parliament, particularly, to see how the power was exercised. For the AFP, intelligence gathering we were told would be a new role—although that assertion really did not hold water after a number of submitters spelt out some of the intelligence gathering roles of the AFP. But for me in particular—and I think for other members of the committee—if the AFP were to perform this function, they would have to necessarily build an intelligence gathering capacity. They would probably have to go back to what we were warned about by Senator Ray some six weeks ago: setting up a special branch structure to ensure that they were fully equipped to perform the intelligence gathering and the questioning in particular. So I think it is fair to say that there was a unanimous report and that unanimous report on this particular point was that ASIO could perform the function. The AFP should be in the field, though, in terms of apprehending the particular person of interest, and ASIO's role would be limited in essence to the examination using their enormous intelligence database to be able to do that properly.

Having decided to go down that road then of course the operational issues became important. How do you supervise the function? What sort of rights should accrue to the person of interest? What sorts of protection should that person get and under what detention regime should that person be kept? If one were to look at the recommendations of the Senate committee, the most striking aspect is that of 27 recommendations, 24 received unanimous support, with government senators having some partial qualification in respect of three of those. For three of the other 27 recommendations, one government senator dissented and the others supported the recommendations.

In essence, the committee proposes an oversight structure whereby much reliance is placed on retired judges of 10 years experience not only to issue warrants but also to supervise the questioning. At the same time, access to lawyers would be provided on the basis of legal assistance from government. There would also be access to interpreters. The detention regime would be tailored very much towards ensuring that once questioning was over, the need for detention would not continue. But the questioning regime would allow quite comprehensive questioning which, if modelled on the Commonwealth Crimes Act, would ensure that the Commonwealth agencies would have up to 20 hours of questioning under a first warrant.

This is a very well thought out and comprehensive report which should provide the basis for further consideration of this legislation by the parliament. I do urge the Attorney-General to both chew gum and think at the same time. I am sure it is within the capacity of government to do that. It is important for the Attorney-General to fulfil his responsibilities to treat this report soberly and to recognise the spirit in which it was developed by all sides of parliament. (Time expired)