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Tuesday, 10 December 2002
Page: 7605

Senator ROBERT RAY (7:44 PM) —The opposition have approached the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 as if we were in government. That has been our philosophy: if we were in government, what would we do to deal with the particular issues? We have not approached it from an oppositionist point of view. We have approached it by saying what we would do in government. Of course, that brings critics in from civil libertarian groups et cetera that then try to push us into a different position, and we have not been pushed into a different position.

The Minister for Justice and Customs says that there have been three parliamentary inquiries into this. In reality there have been two. The original Senate Legal and Constitutional Legislation Committee barely looked at this. The minister should know that, because at the same time there was a concurrent inquiry by the Joint Standing Committee on ASIO, ASIS and DSD. So we have had two parliamentary inquiries in reality. The first inquiry was instituted by the government, so they cannot complain about that. We were not even consulted about it. Mr Williams went into parliament at 10 past six and announced that the bill would be referred to the joint committee. The reason I know we were not consulted—well, we were told 10 minutes before at a joint committee meeting that this might be the case—is that at the same time this matter was being referred to a legislation committee in this chamber, and we do not like such a double-up. So we were not consulted on it but, nevertheless, Mr Williams's action in referring it to the joint intelligence committee was a correct one.

The timetable for the committee was ridiculously short. The committee itself ignored the timetable and put a resolution through both houses of parliament extending the reporting date to allow reasonable time for public submissions. You cannot cut off public submissions, having advertised for them two or three days before. That was the original intention. As it was, the committee did work very hard. It received exemplary cooperation from witnesses, including Attorney-General's and ASIO. We listened to a whole range of critics and were able to bring forward our report in plenty of time for it to be considered by the government for the June sitting. So when the minister comes in here today and says, `We cannot afford any more delay,' some of the delay has been due to government procrastination about amendments and other things. But I think on that point the minister is right—it is now time to finalise these issues before we have the summer break—and I do not think many people in this chamber would necessarily disagree with that.

The fact is that the second inquiry really came about because of the government's indication as to how they would respond to the first inquiry, in which people decided to at least have a look. I must say that I was dubious about whether there is an alternative regime to all of this. There is concern in the community and in this parliament that ASIO should not be a secret police force. The opposition has attempted to create a division of powers between the Federal Police and ASIO that balances and counterbalances the powers in such a way that you will not have evolving a special branch in the Federal Police or a secret police force under ASIO, that there is a mix-and-match. I think that approach has a lot of appeal.

One of the great points in all of this is that if you go back to the original legislation you will see why there has been a need for parliamentary intervention. A whole range of things are now conceded by the government. Things that were regarded as right, correct and proper by them in April this year suddenly are no longer right, correct and proper—in other words, we are not worried about what the states can do, our responsibility is federal. Authorities could strip search a 10-year-old girl under your original legislation. You could have it that people would be detained indefinitely, without any limits at all, if authorities were able to succeed in extending the warrants every 48 hours. You could have a situation where there was no legal representation whatsoever in any part of this process. You could have had a position, because of a technical defect in the drafting of the bill, where people could be detained but the clock would not start ticking until they were questioned. Under this legislation they could have been detained for five years before the questions started. But, again, that has been remedied by way of amendment to this bill in the House of Representatives. We could go back over a whole raft of errors, misjudgments or poor principles that were in the original bill which the government have now corrected. But what we say is that the government have not yet gone far enough.

I think the minister has repeated the worst canard in this debate by basically accusing the opposition of misunderstanding the purpose of the bill. There is misunderstanding about the purpose of the bill. We have spent a lot of time explaining to people that what this bill is about is assisting in the collection of intelligence, not evidence. We understand that. There is no need to patronise us on this, Minister. We have understood that from the start, but we acknowledge that a whole range of critics have never understood that. We have had to fight on two fronts: fight the excesses of the government on the one side and the stupidity of critics on the other side that do not understand the purpose of this legislation. The purpose of this legislation is to enhance the collection of intelligence. It is to protect people's lives by doing so. And it has to be acknowledged that in the process certain traditional rights and responsibilities that citizens have will be curtailed, especially the right to silence—not for the first time but in its most dramatic form yet in legislation presented to this parliament. But we believe that that is a necessary step. It is a hard step for us to take, but we have jumped that hurdle and we have agreed with the government to do so.

These issues should be decided on balance—not out of panic, not out of a sense of who is the most macho on an issue. There has to be a degree of balance within the legislation. The difference at the moment between the government and the opposition is where that line of balance should be. It is no longer a massively dramatic difference; it is a matter of differences over four or five key principles to get the balance right.

It should be noted that support for the sunset clause in the joint intelligence committee was unanimous. The Labor Party, in opposition, did not insist on a sunset clause in the five antiterrorist bills that were passed in the chamber, because we believe they had the correct balance and they were there for the ages. In regard to this legislation, which is more dramatic—I do not want to say `more draconian', but it is more dramatic—one wants to see how it operates. Putting a sunset clause in does not preclude a government from reintroducing this legislation and passing it again, with or without a sunset clause, in the year 2005. The committee was quite sensitive to the issue of electoral timing. That is why we recommended a three-year sunset clause. So if this legislation has to be revalidated in the parliament, it will come up in the first year of a new government, be it Labor or coalition, which in terms of the electoral cycle makes it much easier to be able to deal with these things.

If, as the minister asserts, this legislation is going to work and work well, then there will be very little difficulty in this parliament revalidating that legislation posthaste, without the sorts of committee references and the time that this has taken. It will mean that, six months before the sunset clause, the minister will probably refer it for inquiry to the joint intelligence committee and give the committee two or three months to report back on the effectiveness of it. But there are things that we do not know. We do not know how many warrants are going to be issued under this piece of legislation. It could be as low as 10 over a three-year period, yet it could be several hundred. We need to know that in order to know whether this legislation is working appropriately. I am glad that the government has agreed to pick up the recommendation that says there will be an annual disclosure of the amount of warrants that are issued.

But, if you really want to be convinced that this legislation needs absolute scrutiny, go back to it in its original form. How could a government have introduced such wide-sweeping legislation with no protocols whatsoever as to the questioning process? Under the original bill, we did not know where people would have been detained. Were you going to reopen Boggo Road? Were you going to reopen Pentridge? Where were you going to detain these people? Were they going to be detained in prisons? Were you going to put them up at the Hyatt? Exactly how were you going to detain them, and where? How long were you going to question them for? In the original bill, there was nothing to stop you questioning someone for 48 hours in a row. There was absolutely no provision for a questioning regime.

I prefer for the government—and I think they are now going to accept this—to develop protocols around the questioning regime that are disallowable instruments in this chamber, then we as a parliament do not have to dictate exactly what the questioning regime is. It also gives the government flexibility if they find that their tabled questioning regime is insufficient, is not working, to re-regulate in this area without having to go through new legislation. It is all there for the government to do if they want to. They should just reflect, when they categorically knock back the proposed opposition amendments now, that if they had taken that position in regard to the original bill with all its faults we would have had a terrible piece of legislation pass this place.

I do not know why the government are not willing to further negotiate on this. It seems to me there is a lot of good faith about. I can only presume they are acting under the instructions of the Prime Minister. He has decided to dig his toes in on this issue and no longer negotiate. It seems to me we were bubbling along reasonably well, in a cordial and productive way. All of a sudden there will be no more negotiations. You will just say that this bill is pristine pure now and there can be no amendments. You will not even consider the amendments and it will be thrown out.

Coming back to the sunset clause, this is one of the major protections to give people certainty that this adventurous piece of legislation can in fact work. If it does not work, this parliament will not revalidate it, and nor should it. But, once the legislation is in, if it does not work you do not get a second shot at the title. It sits there forever, or until there is a change of government, or a regime change, in this country. If this legislation goes off the rails, if it does not work, there is nothing this parliament can do about it. That is the exact reason you introduce a sunset clause: because you do get a second shot at the title if it is not working. It is a little inconvenient. You would rather have certainty into the future, but you have a pretty good indication from the opposition that, if over the next three years this regime works and works well, we will certainly give it a tick. We are not going to give it an automatic tick but, if you can show that it is working well, that it is being administered properly, that the safeguards put in are all there and are tuned and are going in the right direction, you will get the legislation again. You will get it pretty quickly. I doubt you will get it in non-controversial legislation time, because our colleagues from the Greens, the Democrats—I do not know about Senator Harris and a few others—would probably not allow that. But I think it would be a much more disciplined debate the second time around, much more focused, without the need for an extensive committee inquiry. The opposition will persist with our insistence on a sunset clause. I point out again that we did not do so with the five terrorism bills, because we did not think it was appropriate. We are not doing this to be narky; we are not doing this to needle the government; we are doing it because we think on this occasion that it is good public policy.