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Thursday, 12 December 2002
Page: 7842


Senator GREIG (10:27 AM) —I move Democrat amendment (6) on sheet 2779 revised:

(6) Schedule 1, item 24, page 18 (line 23), at the end of subsection (9), add:

; (c) information obtained as a consequence of anything said by the person, or any document or thing produced by the person, while before a prescribed authority for questioning under a warrant, in response to a request made in accordance with the warrant for the person to give information or to produce a document or thing.

Democrat amendment (6) relates to `admissibility into evidence'. The amendment seeks to apply a limited derivative use immunity to information obtained during the course of questioning under the legislation. As we know, people detained under the legislation will have no right to silence. However, nothing they say during the course of questioning, nor any document or thing they produce, can be used as evidence against the person in criminal proceedings other than for an offence under the legislation. In other words, a use immunity applies to information obtained during questioning, but derivative use immunity does not apply to such information under the bill in its present form.

We Democrats believe that the absence of derivative use immunity from the bill goes to the heart of whether this legislation is ultimately concerned with intelligence gathering or criminal investigations. There has been a good deal of debate, discussion and focus on the appropriateness of ASIO as an intelligence agency being vested with what are essentially police powers. However, it has been emphasised that the primary purpose of the legislation is to enable ASIO to collect intelligence relating to terrorism. If this is the case, we believe a limited derivative use immunity is consistent with the purpose of the legislation and ought to apply. On the other hand, if the purpose of the legislation is to facilitate criminal investigations against suspected terrorists, then those being questioned should have access to full protection under the law, including the right to silence and the right to have a lawyer present at all times, without exception.

This amendment proposed by the Australian Democrats introduces limited derivative use immunity, which would apply only to the use of derivative evidence against the person questioned. In other words, any evidence obtained as a result of information given by that person during questioning cannot be used against that person. However, such evidence could still be used in criminal proceedings against other people. We Democrats believe that this is consistent with the purpose of this legislation and would not unduly hinder ASIO in its task of gathering evidence concerning terrorism, or the Australian Federal Police in its tasks of investigating terrorist offences.

Question negatived.