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Wednesday, 11 December 2002
Page: 7793


Senator FAULKNER (Leader of the Opposition in the Senate) (6:59 PM) —by leave—I move opposition amendments (23), (25), (28), (29) and (33) to (35) on sheet 2764.

(23) Schedule 1, item 24, page 14 (line 8), at the end of subsection 34E(1), add:

; (h) the person's right to make a request under 34F(11).

(25) Schedule 1, item 24, page 14 (line 18) to page 16 (line 32), omit section 34F, substitute:

34F Conduct of questioning

(1) The prescribed authority shall regulate the conduct of questioning by the Organisation of the person under warrant.

(2) The prescribed authority shall only allow questioning to proceed or continue if the prescribed authority is satisfied that the person has not been questioned for a continuous period of more than 20 hours or for more than a total of 20 hours within a period of 7 days.

(3) If at any time the questioning of the person reaches or exceeds the time limits set out in subsection (2), the prescribed authority shall require the Organisation to immediately cease questioning the person.

(4) Questioning of a person under warrant before the prescribed authority may not be conducted:

(a) at times which interfere with the provision of medical attention to the person;

(b) when the person is intoxicated;

(c) at times when the prescribed authority considers the person is unfit to be questioned;

(d) at times when the prescribed authority considers questioning would interfere with reasonable rest or recuperation.

(5) When a person first appears before a prescribed authority, they may be questioned for a period not exceeding 4 hours.

(6) If on application by the Organisation, the prescribed authority is satisfied that:

(i) there are reasonable grounds to believe further questioning is likely to yield relevant information; and

(ii) the person has access to legal advice consistent with subsections 34U(1) to (3), the person may be questioned for a further period not exceeding 8 hours in addition to the questioning allowed by subsection (5).

(7) If on application by the Organisation, the prescribed authority is satisfied that there is a threat of an imminent terrorist act and that there are reasonable grounds to believe further questioning is likely to yield information relevant to that threat (including information relating to preparation or planning for a terrorist act), the prescribed authority may allow the person to be questioned for a further 8 hours in addition to those periods allowed by subsections (5) and (6).

(8) The prescribed authority may authorise a person who is or has been before the prescribed authority for questioning under warrant to disclose to other persons information about the warrant, the questioning or the production of records or things.

(9) The prescribed authority may authorise a legal practitioner who is accompanying or has accompanied a person who is or has been before the prescribed authority for questioning under warrant to disclose to other persons information about the warrant, the questioning or the production of records or things.

(10) An authorisation to allow disclosure of information made by the prescribed authority under subsection (8) or (9) shall be in writing and shall specify the information which may be disclosed and the persons to whom the information may be disclosed.

(11) A person appearing before a prescribed authority may at any time request the prescribed authority to make an authorisation under subsection (8) or (9) and the prescribed authority must immediately consider such a request.

(12) An authorisation to allow disclosure of information made by the prescribed authority under subsection (8) or (9) may be revoked at any time.

(13) This section does not in any way limit contact between the person and the Inspector-General of Intelligence and Security or the Ombudsman under:

(a) sections 10 and 13 of the Inspector-General of Intelligence and Security Act 1986; or

(b) section 22 of the Complaints (Australian Federal Police) Act 1981;

as the case may be.

Note: The sections mentioned in this subsection give the person an entitlement to facilities for making a written complaint.

(14) Anyone holding the person in custody under this Division must give the person facilities for contacting the Inspector-General of Intelligence and Security or the Ombudsman to make a complaint orally under a section mentioned in subsection (13) if the person requests them.

(28) Schedule 1, item 24, page 17 (lines 17 and 18), omit the note.

(29) Schedule 1, item 24, page 18 (lines 3 and 4), omit the note.

(33) Schedule 1, item 24, page 20 (line 11), omit “Director-General”, substitute “police”.

(34) Schedule 1, item 24, page 20 (line 17), omit “Director-General”, substitute “police”

(35) Schedule 1, item 24, page 20 (after line 20), at the end of section 34K, add:

(3) The police must immediately provide the Organisation with a copy of any video recording made under this section.

The opposition have come to the view that with appropriate and strong safeguards ASIO should be able to ask questions during interviews. We have only come to that view after close consideration of a number of alternative models and a range of issues which were considered at great length during the Senate Legal and Constitutional References Committee inquiry. We say that the information gathering regime must be broadly consistent with other questioning regimes that are employed by Commonwealth and state law enforcement agencies such as royal commissions, the NCA and state crime commissions. The opposition believe that to interview people about terrorism offences ASIO should have powers which are similar to those that bodies such as the NCA or ASIC have in relation to corruption or corporate crime.

I want to stress to the committee that the opposition support five very significant safeguards in relation to questioning. Firstly, the opposition believe that the questioning should be supervised by an experienced retired judge. The chamber has been dealing with this particular matter—it was dealt with earlier today—but I think it is important to note in the context of safeguards that a person of seniority and standing should supervise such a questioning regime. Secondly, the opposition believe that warrants should be for a limited period and should be for questioning only. Thirdly, we say that the person being questioned should have a lawyer. Of course, this committee will be dealing with that substantial issue a little later. But I do think it is important to take account of it as we examine this broad question of safeguards. Fourthly, we believe that the Australian Federal Police should be responsible for all the logistical arrangements. Fifthly, but still very importantly, we say that any interviews must be videotaped.

It is the view of the opposition that if these safeguards are in place it is not only reasonable but appropriate that questioning for intelligence about possible terrorist activity is done by experts who know their brief and whose responsibility is to investigate such matters. In terms of the sort of information that is being sought by ASIO, one would expect that they are either going to get answers to these questions within a day or so of rigorous questioning or it would seem pretty unlikely that they are going to get them at all. The opposition strongly believes that the legislation should include the maximum time a person can be questioned and it should include provisions ensuring that once questioning is completed a person is free to leave. I stress the fact that the government has always said that this bill is about intelligence gathering. If it is, then it is impossible to argue against the principle that once questioning is completed a person is free to leave.

The time for questioning under the warrant should be broadly modelled on the investigation periods set out in the Commonwealth Crimes Act. It is imperative that the time limits should not be such as would turn a questioning regime into a detention regime. It is essential that we remember in this debate that we are dealing with people not suspected of any criminal offence and we do not think that they should be treated worse than people who are suspected of committing serious crimes. The time which applies for questioning of criminal suspects in Commonwealth criminal matters is four hours, with the potential to roll that over with an extension for another eight-hour period. So that is four hours plus eight hours of solid questioning.

In addition, the Commonwealth Crimes Act provides that there will be substantial— at times very substantial—down times. Meal breaks are down times, toilet breaks are down times and breaks waiting for a lawyer or an interpreter may be down times. It is very common for a person to be in a police station pursuant to these questioning provisions for the best part of a day or, as I am sure senators realise, sometimes even into a second day, all because of this continuing four hours plus eight hours of questioning. Consistent with the recent unanimous Senate committee report and the provisions of the Crimes Act, opposition amendment (25) provides:

When a person first appears before a prescribed authority, they may be questioned for a period not exceeding 4 hours.

That period can be extended by up to eight hours only if, on application by ASIO, the prescribed authority is satisfied that there are reasonable grounds to believe that further questioning is likely to yield relevant information. The extension of questioning past four hours can be granted only if the person has legal representation. The opposition do believe that these time frames are appropriate. We make an exception—and I say to the committee that I would hope that this is an exception that would never need to be used—that, where on application by ASIO the prescribed authority is satisfied that there is a threat of an imminent terrorist act and that there are reasonable grounds to believe that further questioning is likely to yield information relevant to that threat, the prescribed authority may allow the person to be questioned for a further eight hours. I do think that this committee needs to take account of these possible extraordinary circumstances, these urgent circumstances where there may be a massive threat to public safety.

I want to say this also, and be frank with the committee: if ASIO cannot get answers to their questions within four plus eight hours then I suspect they will probably have little to get from the person being questioned, or perhaps the person is very recalcitrant and uncooperative and is likely then to find themselves subject to the criminal charges which would apply to those who refuse to answer questions or who would give dishonest or misleading answers. Under the amendments proposed by the opposition, if an experienced judicial officer is satisfied by ASIO's advice that there are reasonable grounds to believe further questioning may yield information relevant to a terrorist attack, then and only then can a person be held for further questioning. We do not resile from the fact that we believe that in these sorts of circumstances a high threshold is appropriate.

Also in this raft of amendments that I have moved on behalf of the opposition are amendments (28) and (29), which have the effect of amending proposed section 34G to remove the evidential burden placed on the person who is appearing for questioning under the warrant to show that he or she does not have the information sought or possession or control of the relevant record or thing. Again, I want to say that this amendment is consistent with the Senate committee recommendations. Section 34G reverses the onus of proof—making a person have to prove, for example, that they do not know something. The use of a reverse onus of proof violates any presumption of innocence. It is also of concern that these provisions would unduly impact on vulnerable detainees, including children and people who might have language difficulties.

As well as dealing with questioning times, opposition amendment (25) makes it clear that a person can ask to contact family members or their employer. This goes to an issue that Senator Greig was looking at in the previous amendment. We expect that such requests would be dealt with sensibly and allow a person to notify people without prejudicing the content of questioning. Finally, I will not be moving opposition amendment (31), which provides that a person shall be provided with an interpreter if they request one, because the government has proposed a viable and effective alternative. (Time expired)