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Wednesday, 11 December 2002
Page: 7685


Senator FAULKNER (Leader of the Opposition in the Senate) (10:38 AM) —Although this debate is not focused on the precise amendments that are currently before the chair, it is nevertheless an important debate. It is important that this committee understand that actual involvement in planning a terrorist act is not the trigger for ASIO to want to interview a person under this legislation. That clearly is an offence as a result of the counter-terrorism laws passed in this parliament earlier this year. Under this bill, what is required for a person to be questioned is that that person has information and ASIO can get to it only by interviewing the person. If someone is in some way involved in planning a terrorist act, they are a suspect and they should be treated as a suspect. Because of the strong counter-terrorism laws that were passed earlier this year there is a capacity for them to be dealt with under the Criminal Code as a suspect. It is also important to understand that people being questioned may not actually know or understand the significance of what they know. They may have, for example, merely chauffeured a friend from overseas around during the holiday period. Without actually knowing it they might have been photographing potential sites for terrorist attack. That is the sort of thing this legislation is about.

What about this for a scenario that this parliament needs to contemplate? If a small group of terrorists have arrived in Australia and are, let us say, planning to carry out a terrorist attack, they might maintain a high level of secrecy, and foreign signals intelligence and foreign intelligence liaison may not provide any useful information. Since the terrorists have not been located or identified, ASIO's special powers—telecommunications interception and listening devices— cannot be brought into play. However, maybe the terrorists require local assistance to gather information on their target or to facilitate accommodation, banking, transport, false identities or whatever it might be. As a consequence, they are in contact with locals who may not be aware of their plans but who may well be in possession of much relevant information. These people may be sympathisers and may well be known to ASIO through routine intelligence collection. They are less likely to be secretive about their beliefs and allegiances. They may, however, be quite unlikely to cooperate voluntarily with ASIO investigations.

It is in this type of situation where ASIO could employ a compulsory questioning regime to interview known sympathisers to obtain information about their contacts with these visitors and so forth. Such persons are unlikely to volunteer information but could be prompted to divulge information when faced with the legal consequences of nondisclosure in the context of a compulsory questioning regime. That sort of questioning could reveal the presence, movements and activities of people who are terrorist suspects. The information may not be obtainable from any other source. A person being questioned may not be aware of the significance of the information they disclose, but then other methods of intelligence collection could be brought to bear—telecommunications interception, listening devices, close surveillance—to enable ASIO to make an assessment of the threat and take pre-emptive action to prevent a terrorist act. It is this sort of scenario that needs to be contemplated by this parliament. That is why Labor have proposed the sorts of amendments to this legislation that we are debating at the moment.

It is important to remember that, while telecommunications interceptions, tracking devices and the like are very useful tools, they do require knowledge of whom to target, whose calls to intercept, whom to track and so forth. If, from one of its counterpart organisations overseas, ASIO were to learn of a possible future terrorist attack, the information might be specific enough to indicate timing, method or location but not the individuals involved locally, with only specific information on overseas personnel. So a compulsory questioning regime could be very useful in these sorts of circumstances in trying to determine when someone visited Australia, what their activities were when they were here, whom they met and so forth. But we need to understand that this information could well be held by people who are not involved in any terrorist activity or terrorist planning in any way and who may well not be aware of the significance of the information they hold. The government should present that case to the committee, because it certainly exercises the minds of the opposition as we look at an appropriate response and as we look at the challenge of getting the balance right in relation to this legislation.

The other substantive issue that has been raised this morning goes to the question of whom this legislation should apply to. I take the view that legislation that we pass here ought to apply to parliamentarians, journalists and everyone else in the community. There are no exclusions here, as far as I am aware. Through the chair, Minister, I say to you that I think you have provided conflicting advice to this committee on the issue of parliamentary privilege. You have undertaken to seek further advice, and I would respectfully suggest to you that that be provided urgently, because you have made two statements in relation to parliamentary privilege and they are very different in nature. My understanding is that certainly the provisions of this bill will apply to parliamentarians as they apply to others in the community. I may be in a minority of one here in relation to this, but I think they ought to apply equally to all of us, whether we be parliamentarians, journalists or anybody else in the community.

In relation to your comments about parliamentary privilege, Minister, let us take the case of a senator. If a senator were detained under the provisions of this legislation, would the Senate be informed that that was the case?