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Thursday, 12 December 2002
Page: 7840


Senator ELLISON (Minister for Justice and Customs) (10:18 AM) —The government opposes the opposition amendments and it does so for a number of reasons. Firstly, the proposals of the opposition go to the very heart of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002. The opposition says that this bill should be about a questioning regime rather than a detention regime. Of course, this bill is designed to assist ASIO in its role of intelligence gathering, and that is crucial when you are dealing with terrorists and terrorist organisations.

I was interested to hear what Senator Ray said yesterday on this point, when he conceded that there is a need for limited detention for the purposes of intelligence gathering. The government believes that we do need this detention regime if this bill is to be effective. It is a shame that Senator Ray's views do not prevail in the opposition, because he certainly has had long experience in matters dealing with security. The opposition proposes a regime whereby someone can be questioned for four hours and that can be extended by eight hours. There is the capacity for questioning under a warrant for a period of 12 hours. The government says that, while some people might think that is a lengthy period to conduct questioning, when you look at an operation of this sort you have to remember that the information gained has to be checked and other inquiries may have to be made—in fact, most probably would have to be made—whilst you have the person detained for questioning. That is an essential part of the intelligence gathering exercise. We say that ASIO should have the ability to detain a person for questioning to ensure that that person is not released while the investigation is taking place, and therefore cannot tip off their colleagues or associates who are the subject of an investigation. We believe that it is essential for the people at the sharp end of things, those who are carrying out these investigations, to have the tools to do their job. Of course, ASIO is very much in that position.

Whilst we say that there should be a detention regime, we also say that there should be significant safeguards, and we say that those safeguards are in the bill. The bill provides that all persons are to be treated with humanity and respect for human dignity. The safeguards in the bill will prevent questioning for inappropriate periods. The protocols to be developed governing custody, detention and questioning of persons will also give guidance as to the appropriate period for which a person may be questioned while subject to a 48-hour warrant. But of course you have to have flexibility if you are to provide your security agency with the necessary powers to gather that crucial intelligence.

It would be absurd not to have a power to detain a person for a limited period in a situation that might put public safety at risk. You have to remember that we are talking about matters which strike at the heart of the security of our community, the security of our country and public safety. Those people at the front line of meeting this threat tell us that, in order to protect the community from this kind of threat, they need the power to hold a person incommunicado. They agree— and we say as a government—that this should be subject to strict safeguards whilst questioning is carried out for the purposes of intelligence gathering. We reject the idea that this regime should be one of questioning only. You have to have a detention regime if this bill is to be effective. If you are serious about tackling the security threat to our nation as it exists in the current environment, you have to provide ASIO with the ability to do its job.

The provisions of the Crimes Act have been mentioned. Of course, the Crimes Act 1914 is designed to protect the interests of an accused who is in a situation where the information that he or she discloses can be used against them in a criminal prosecution. This bill is about intelligence gathering, not a criminal prosecution. The Crimes Act is structured for an entirely different purpose. Under this bill, the information provided by a person questioned under a warrant cannot be educed against them in a subsequent criminal prosecution and is educed in circumstances where the issuing of the warrant prime facie acknowledges a significant threat to public safety.

Opposition amendments (28) and (29) deal with offences outlined in the bill concerning those who fail to provide information requested of them under a warrant. It will be a complete defence if the person does not have the information requested. The amendments would delete the notes in the bill that refer to the evidential burden being placed on the defendant who wishes to mount this defence. It is consistent with Commonwealth criminal policy to place an evidential burden on persons where the matters to be proved are peculiarly within the knowledge of the defendant, and that is a principle which we have in our criminal law. It is there already and we believe that it is fair to place that evidential burden on the person concerned, in view of the principle that I have just stated.

If the evidential burden were not placed on the defendant in these cases, the defence of not having the information required would be raised in every case, regardless of whether there was any merit to the claim whatsoever. This would make prosecutions incredibly difficult to mount and would waste vast amounts of time and money in dealing with spurious defences. If we are serious about compelling people to answer questions—and from what I understand, the opposition has no problem with that; the opposition does not suggest that we should not have that power—we must have effective sanctions in place. We have seen this in other regimes, such as the legislation dealing with the new Australian Crime Commission. The point of this bill is to obtain intelligence, not to create opportunities for defence lawyers to mount defences with no merit.

I have described the government's position in some detail because I think it is very important for people who are looking at this debate to understand that the government believes that this bill has to have a detention based regime in order to be effective. It has to have that regime for the reasons I have mentioned. If ASIO is to do its job effectively, it has to have these powers. For those reasons we cannot accept the opposition's amendments. I note again the comments by Senator Ray, which I have found quite useful and interesting. It is just a shame that the opposition cannot see its way clear to support what Senator Ray is saying.


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

Question negatived.


The TEMPORARY CHAIRMAN —The question is that the amendments moved by Senator Faulkner be agreed to.

Original question agreed to.


Senator Faulkner —Mr Temporary Chairman, I raise a point of order. It is a minor point. Amendment (31) was not put then, was it?


The TEMPORARY CHAIRMAN —No, it was withdrawn.


Senator Faulkner —Yes. I just wanted to be clear on that, thank you.