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Wednesday, 11 December 2002
Page: 7677


Senator BROWN (9:52 AM) —I will summarise that. The government is agreeing with Senator Faulkner's proposition that this is a detention bill. Its primary function is to detain people, including people who are totally innocent—people who ASIO knows are innocent but who ASIO thinks may have some information that could help. I am very concerned about that, because it means that the government is very well aware that it is giving an instrument to ASIO to take people out of circulation. It can question them as part of that, but the primary impulse here is for the government to take people out of circulation, and there are widespread concerns in the community about this. I refer to the Age editorial of 26 November, headed `A clear and present danger to free speech'. It states:

Changes to the ASIO law pose a real challenge to our democratic traditions.

The editor on this occasion went on to say:

In an effort to strengthen the hand of its key security organisation in the fight against terrorism, the Federal Government is amending the law controlling the Australian Security Intelligence Organisation (ASIO). The Age fully supports measures that strengthen the legal framework needed to deal with the threat that all forms of terrorism pose to the Australian community.

Indeed, so do we all. The editorial goes on to say:

The media, as much as any other institution, has an important role to play in combating such evil.

Journalists have no special legal protections attached to their craft. There is no equivalent to the professional privilege that attaches to lawyers, doctors, priests and other professionals to protect communications between journalists and their sources. Instead, journalists depend on the trust they establish with sources and on a strongly held moral and ethical responsibility to protect them from disclosure if necessary. The journalists' union code of ethics clearly spells this out. The courts have also long recognised that journalists should not be forced to reveal their sources unless it is “in the interests of justice”. Yet, in the strictly legal sense, journalists are in no more privileged a position than others in the community. It is precisely because of this—

and note this—

that The Age takes exception to some of the measures proposed in the ASIO Legislation Amendment (Terrorism) Bill. Journalists, along with anyone else, would be subject to arbitrary detention under the terms of the amended legislation. They could also be compelled to reveal their sources. This would prevent them—perhaps even worse, discourage them—from doing their job properly. Among the specific proposals are two that are of particular concern.

I interpolate here that we in the committee should take note of this. The editorial also said:

The first is that any person detained can be held incommunicado for 48 hours. After that, they would only be allowed contact with lawyers or others who had security clearance. During the 48-hour period, detainees would not be allowed access to legal counsel, their employees or their families. Parents, advisers or lawyers acting for detainees may be removed if they are deemed to be “disruptive” during questioning.

Remember that under this legislation—and I am interpolating here again—14-, 15-, 16- and 17-year-olds can be held without notification. The editorial went on to say:

Such provisions run not only counter to Australia's democratic and legal traditions but verge on the draconian. In them are echoes of the sort of repressive regimes Australians have fought wars against.

A second provision of concern would make it an offence subject to a two-year term of imprisonment for the lawyer or representative of a detained person to pass on information about the questioning and detention of that person to an unauthorised third person, such as a journalist. The effect of this would be to cauterise the flow of information, the free flow of which is the lifeblood of a democracy. In its current form this bill seeks to impose serious restraints on freedom of speech and on the way in which a free media operates. That is why in a submission to the Senate Legal and Constitutional Committee we argue that under this law a form of qualified privilege should attach to journalists.

That speaks for itself, but it underscores the great challenge—not just in this legislation but also in the way that we as legislators meet the sometimes opposing requirements—which is that we should deal with terrorists but in doing so we should not unnecessarily or imprudently infringe upon the great democratic traditions of Australia. I believe that this legislation unnecessarily does that. The minister is now failing to enter into the debate about that very matter. How does the government defend the trammelling of core freedoms, liberties and democratic processes that this legislation entails?

This legislation would allow, in this case, a journalist to be picked up without anybody else being notified and to be held for 48 hours and then for up to seven days—at first without legal representation. Although the editorial did not mention it, she or he would be subject to the threat of five years in jail if she or he did not answer the questions put to them. All that would occur, even if the journalist is in no way suspected of being involved in any terrorist activity but is suspected of having some information which ASIO might want—a phone number, names, contacts—whether or not the journalist has that information. In effect, their liberties are taken away. We must assume this will happen. We are dealing with this reality in projecting ourselves into the future.

Moreover, as the editorial says, this legislation would make it an offence, subject to a two-year term of imprisonment, for the lawyer or the representative of the detained person—for example, a journalist—to pass on information about the questioning and detention of that person to an unauthorised person such as a journalist. The question is: would they even be able to write about their experience? Maybe the minister will answer that question. These are real questions. We must project that these are real circumstances that will happen. These are real situations set up by this piece of legislation. The challenge for the government is to satisfy this committee that the legislation does not do what the editorialist is concerned it does do and that it does what the minister said it does last night—that is, defend fundamental democratic values and freedoms when, on the face of it, it infringes on those things.


The TEMPORARY CHAIRMAN (Senator Knowles)—The question is that the amendments moved by the opposition be agreed to.