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Thursday, 5 December 2002
Page: 7336


Senator NETTLE (6:33 PM) —I also rise to speak to the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 report, which was considered by the Legal and Constitutional References Committee. In speaking to this report, I would like to thank Senator Ludwig, who spoke before me, for his comments on how these recommendations go some way towards ameliorating the worst aspects of the bill as it was originally introduced. It is worth noting that this is the third committee to which this legislation has been sent and that we have had the opportunity for public input into the inquiry by way of submissions. For each of those inquiries into the bill there was a substantial number of submissions from the public. On each of those occasions, the majority of the submissions raised problems with the bill, and many of them called for there to be outright opposition to this bill. That is the position of the Australian Greens, and that remains the position of the Australian Greens.

Even if the recommendations put forward by this latest committee are adopted by the government, this piece of legislation would still allow ASIO to detain people who were not suspected of being involved in a terrorist activity. It is a fundamental tenet of our legal system—indeed, it is stated in the Magna Carta—that no-one should be detained unless they have come before a court and have been found by that court to be either suspected or convicted of being involved in a criminal act. This piece of legislation seeks to undermine that very tenet on which our legal system is based.

It seeks to extend, to a point that we have never seen before in this country, the power of our security services. It seeks to give ASIO the power to detain people and to put in place a regime of coercive questioning under which, if people do not respond to questions, they can be imprisoned for five years. So they no longer have another basic tenet of our legal system, which is the right to silence. These are the things that this piece of legislation would do even if the recommendations put forward by the committee were adopted by the government. We heard Senator Ludwig go through the other parts of this legislation that were originally there that the committee seeks to amend.

I would like to go to some of the recommendations from the committee. Before I do so, I would like to point out that this idea of being able to detain non-suspects is not something that we have seen in the United States or in the United Kingdom in the legislation that they have brought into play post September 11 to try to address issues of terrorism. People who appeared before the committee—a number of whom were prominent QCs—came forward with an explanation, often a strident explanation, of the ways in which our current criminal justice system allows us to deal with those crimes that are considered to be terrorist crimes. They went through in detail the ways in which our current criminal justice system allows the style of coercive questioning that ASIO and the government have been arguing for in this piece of legislation. They went through the arguments to say that, when a terrorist act is committed, it is a criminal act that is committed. The thing that makes it a terrorist act is that it is motivated by political or religious beliefs, but the actual crime that is committed is a criminal offence and an offence that can be prosecuted under our existing criminal justice system. We have had that argument from several legal practitioners and legal organisations, and now we have had three public hearings of explanations of ways in which our current criminal justice system can deal with the issues of terrorism; we do not need this piece of legislation. So that is where we are starting from in this debate: it is not needed.

I would like to spend a little bit of time going to one particular recommendation of the committee report. It is recommendation 13. One of the things that we have heard the committee and the Labor Party in particular say about this report is that it seeks to put in place an opportunity for people to have legal representation. That, as I think Senator Ludwig may have pointed out, was not originally in the bill. I have some concern about the way in which recommendation 13 is worded. It says:

The Committee recommends that access to a legal adviser should not be barred under the terms of a warrant—

which is something I think Senator Ludwig addressed—

but that if ... there is a real and immediate threat to public safety, the Prescribed Authority should be empowered to order that questioning commence without waiting for the attendance of a legal adviser.

I point that out as a caveat on being able to have a legal adviser present for this questioning by ASIO. It then goes on to provide another caveat, which is to say:

The Prescribed Authority should also have the power to order that questioning should proceed where he or she is satisfied that consecutive nominations of legal advisers constitute an attempt to frustrate the questioning process.

This is another caveat that has been added into this recommendation. So we have in this recommendation two opportunities to allow questioning to begin without a legal adviser being present. We are yet to see at this stage the amendments that I understand the Labor Party is putting forward to see that the recommendations of this committee are implemented. If indeed this is the path that the Labor Party is prepared to take and is choosing to take—that is, the assumption that this bad bill, this bill that undermines fundamental tenets of our legal system, can be amended and therefore made appropriate, which is not a position that the Australian Greens subscribe to—then these recommendations would need to be modified in amendments. It would need to be a modification that would reflect the deliberations of the committee, which I took to be an assumption that questioning could begin without a legal adviser being present but that a legal adviser would subsequently be able to be available for the person being questioned.

That would need to be made clear in any such amendments, perhaps with a time frame put in place, whereby it was anticipated that a legal adviser would be able to be present, and perhaps even with a suggestion of the mechanism by which that might take place— for example, the prescribed authority being able to give the person who is being detained and questioned information and names and phone numbers of potential legal practitioners who could come in and advise them. If the Australian Labor Party sees this recommendation as a mechanism to ensure there is legal representation, it will need to go the whole way and ensure that its recommendations do allow for a legal adviser to be present and do not allow that opening for questioning to begin without a legal adviser being present. That opening should be closed by introducing a mechanism by which it can be ensured that a legal adviser is present.

I would now like to speak a little bit about what is happening in my home state of New South Wales at the moment. A piece of legislation has been introduced by the Carr Labor government, the Terrorism (Police Powers) Bill, on the premise that it is a response to the events of September 11 and to the Bali bombing. This legislation, it is shameful to say, goes even further than the legislation that has been proposed by the Howard government in this place and in the other place. Indeed, it goes so far as to say that the operations of the bill cannot be reviewed by a court—that is, it seeks to go outside the separation of powers. (Time expired)