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Thursday, 12 December 2002
Page: 7923


Senator FAULKNER (Leader of the Opposition in the Senate) (3:37 PM) —Getting to this point on this bill has been a long and difficult process. The government introduced the ASIO bill into the House of Representatives on 21 March this year. But the bill the government introduced in March is very different to the bill we now have before us. The ASIO bill as introduced on 21 March 2002 would have allowed adults and children to be detained, strip searched and held by ASIO for rolling two-day periods that could be extended indefinitely, even after questioning had concluded. While detained, Australians could be denied access to people outside of ASIO and could not inform family members, their employer or even a lawyer of their detention. The proposed section 34F(8) of the bill stated:

A person who has been taken into custody, or detained, under this Division is not permitted to contact, and may be prevented from contacting, anyone at any time while in custody or detention.

Under the original bill, a 10-year-old child could have been held in detention by ASIO and strip searched. There is no way that this bill could have been accepted by the opposition. There is no way that this bill could have been accepted by the legal profession. There is no way that this bill could have been accepted by ordinary Australians. The opposition used the processes of parliament to ensure that the bill was thoroughly examined and to provide an opportunity for the many organisations and individuals with an interest in this bill to have their say. The original bill was referred to the Parliamentary Joint Committee on ASIO, ASIS and DSD. It was also referred to the Senate Legal and Constitutional References Committee. The PJC on intelligence services undertook a detailed examination of the bill, including public hearings, and they produced a bipartisan advisory report which was heavily critical of the government's bill. The report stated:

The bill in its original form would undermine key legal rights and erode the civil liberties that make Australia a leading democracy.

The parliamentary joint committee made 15 substantive recommendations that were intended to go some way towards making the bill more acceptable. At that time, the Senate Legal and Constitutional Legislation Committee did not conduct a detailed inquiry into the bill, but it reserved its right to do so if the government did not accept all of the PJC's recommendations. The government's amendments to the bill did not adequately address the concerns of the two committees. The amendments fell well short of what the joint committee considered the minimum necessary for the bill to be acceptable. In effect, the government only fully accepted 10 of the PJC's 15 recommendations. Even more importantly, the government still proposes that people who are not suspected of any offence may be detained in secret for up to seven days.

In contrast, under the Crimes Act, murder suspects can only be detained by police for a maximum of 12 hours. They must then be charged or released. In fact, the government is making the absurd proposal that a terrorist suspect can only be detained and questioned for 12 hours but a non-suspect who may have information about a terrorist activity can be detained and questioned for seven days. In light of the completely inadequate response from the government to the PJC's recommendations—and I stress that they were bipartisan findings of the Parliamentary Joint Committee on ASIO, ASIS and DSD— the opposition successfully moved at the second reading stage in the Senate that the bill be referred to the Senate Legal and Constitutional References Committee. The committee's main task was to examine alternative ways of enhancing the capacity of our law enforcement agencies to counter terrorism without compromising civil liberties. The Senate committee undertook a detailed examination of the bill in a very short time frame. In the view of the opposition, the committee members should be commended for the excellent report that they produced. Again, it was a report with a high degree of bipartisanship on the essential elements of principle that are contained in the bill.

The committee recommended a viable, alternative model for strengthening counterterrorism powers, one which the committee believes provides:

... a basis for improving and progressing the legislation, while keeping its provisions within acceptable bounds and respecting the rights and freedoms that are fundamental to the Australian community.

All the parliamentary committee considerations led to a substantially revised model for strengthening the intelligence gathering powers of the Commonwealth with regard to fighting terrorism. At the same time that these committee considerations were under way, the opposition continued to discuss with the government the provisions of this bill with a view to resolving our differences and, if possible, reaching agreement on changes to the bill. I have to say that, while I appreciate the government's readiness to engage in these discussions, it has been ambivalent in its approach. At times the government seemed to genuinely want an accommodation; at other times it seemed to me that it preferred differentiation. At times it appeared to have been seized as to the urgency of the bill; at other times it seemed to have been perfectly happy to leave this bill on the backburner. The end result of this necessarily lengthy process of consideration and consultation is the bill that we now have before us. It is a bill which significantly enhances ASIO's intelligence gathering capacity in relation to terrorism offences and it provides strong protections for those who are subjected to questioning.

There are those who argue that we should not be increasing ASIO's powers at all. Let me be clear about this: the Labor Party does not agree with those arguments. There is no question that we are facing an enhanced threat of terrorism in the wake of September 11 and the Bali bombings. We must respond to that threat. As legislators, we owe it to the Australian public to ensure that our security and intelligence agencies have all the necessary powers to detect and prevent terrorist attacks. ASIO is our front line against terrorism. At the moment ASIO can ask questions but it cannot demand answers, and that is quite clearly a problem and it needs to be fixed. Why should we permit a compulsory questioning regime for royal commissions, the Independent Commission Against Corruption and other state crime commissions, and agencies such as the Australian Securities and Investments Commission, but not for ASIO? Why should we treat corporate crime as more important than terrorism? Quite clearly we should not do that, and that is why the opposition has looked to these models in trying to determine what a reasonable, compulsory questioning regime might look like.

The government has proposed a detention regime, and a very harsh detention regime at that—up to seven days and with the detainee potentially being incommunicado for the first two days without access to a lawyer. Why should a person who is not suspected of any offence, but who is simply thought to be able to assist with information relevant to the investigation of a terrorism offence, be treated worse than a murder suspect? In other words, why should a nonsuspect be treated worse than a suspect? The opposition remains very firmly of the view that such an approach cannot be justified.

What are the new powers that we are giving ASIO in the bill now before the Senate? What are the new protections that we are providing to those who might be subjected to this new regime? Through amendment, the Senate has largely put in place the alternative model that was envisaged by the Senate committee. It has a significant number of features and safeguards: compulsory questioning by ASIO officers before a prescribed authority; custody directly linked to the questioning and no detention for other purposes; access to legal representation of choice; protection for children under the age of 18; a detailed statement of questioning procedures; and the maintenance of comprehensive and proper parliamentary scrutiny of the system and of the outcomes of the system.

Each time the government has come up with a problem or a sticking point. The opposition has been assiduous in considering the issues and developing solutions consistent with the principled position it has taken on the bill. I can even say that the opposition has bent over backwards to find solutions to the workability problems raised—and raised at short notice—by the government. As an example, the government's constitutional issues concerning chapter III limitations on using serving federal judges were raised as a stumbling block to the workability of the questioning regime. The opposition proposed an alternative pool of judicial experience to address this issue, and then the government came up with further problems with this solution. The government says there are not enough retired judges. Senator Ellison bandied around the figure of 22. On the basis of our own inquiries to state and territory governments, we are confident that the pool of retired judges is in excess of 150.

Nevertheless, the opposition have again addressed the government's concerns and provided an appropriate and workable alternative. We urge the government to accept it. In other words, the opposition has laid our bona fides on the table and we have done that right here in the chamber during the committee debate. We are intent on providing workable and appropriate tools for gathering intelligence on terrorism and we have bent over backwards during the Senate's consideration of this bill to ensure that the government's concerns—those stumbling blocks—are overcome.

We are providing powerful new tools for ASIO in their fight against terrorism. We say and strongly believe that the protections are appropriate, that the protections are adequate and that the protections are balanced. The government will no doubt argue that the enhanced powers do not go far enough and that the protections go too far. I am sure that is what the government will say. We simply do not agree. The government might be disappointed that it has not got everything it wanted in the committee debate. We are very pleased, and I think the Australian community as a whole should be very relieved, that that is the case.

The government now has a choice: it can vote for the bill as amended or it can reject it. The government can accept the new powers that the Senate is offering for ASIO, along with the protections that the Senate is insisting upon. Alternatively, it can reject those powers, and I suppose it always has the opportunity of using this bill politically. At the end of the day, the issue here is whether the government and this parliament act in the national interest—and for the government the issue is not only whether it acts in the national interest but whether it acts in its own perceived political interest.

I say that the solution that is being determined by the Senate is a balanced and principled outcome. I believe that the powers in this bill are tough and unprecedented. I also say that they are necessary. But when you have tough and unprecedented but necessary powers, you also need adequate safeguards and protections. I believe that the bill, the third reading of which is now to be voted upon in the Senate, delivers both those objectives. The opposition will be supporting the amended bill and I urge the Senate to do the same.