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Thursday, 12 December 2002
Page: 7926


Senator GREIG (3:57 PM) —In this third reading debate on the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, I begin by emphasising that we Democrats abhor and oppose terrorism as much as any other Australians. Like other Australians, we are angered, saddened and shocked by terrorist attacks such as the ones we saw on September 11 and more recently with the Bali bombings. We recognise that the threat of terrorism poses new and, I dare say, complex challenges for governments around the world. But there is no obvious way in which to address that threat effectively. As many have observed, terrorism is a threat not just to the lives of innocent civilians but also, at times, to democracy and freedom. The Democrat response to terrorism is to ensure that we seek to protect lives as well as democracy and freedom. On 17 September last year Prime Minister John Howard said:

Wouldn't it be a terrible, tragic, obscene irony if, in responding ... to these terrible, terrorist attacks, we forsook the very things that we believed had been assaulted ...

He was referring to the events of September 11. Unfortunately, in making that statement, the Prime Minister prophesised the ultimate flaws in what has become his government's response to terrorism. We Democrats have been dismayed to see the terrible, tragic and obscene irony of that response over the past 14 months manifested principally in the suite of antiterrorism bills we dealt with earlier this year.

The government has consistently made the case that effectively responding to terrorism requires a departure from fundamental human rights and freedoms. Since September 11, we have repeatedly heard the mantra from many politicians around the globe that the world has changed. This mantra has been relied upon to challenge the foundational tenets of our political and legal system. The thinking seems to be that the world has changed and therefore the way we deal with the world must change too. The presumption of innocence, the right to a lawyer, the right to remain silent and the right not to be detained arbitrarily have all been threatened. This is wrong and it is dangerous, and in many ways it plays into the hands of the very people seeking to destabilise our accepted way of life and general stability and security. If the aim of terrorists is to cause fear and uncertainty then we must not let their presence and activities induce a climate of fear and uncertainty in our own day-to-day lives, causing us to abandon the very legal protections that we acknowledge as being important to the essence of freedom and democracy.

I take the opportunity to record the Democrats' great disappointment that this bill is even being considered at a time when there is a complete absence of an Australian bill of rights or at least a charter of rights. This legislation clearly illustrates that the rights and liberties of Australians are not inalienable but may be overridden by clear legislative intent. Australia is now one of the only remaining common law countries which lacks a bill of rights, and there is no reason which justifies Australians being exposed to potential derogations of their fundamental human rights and freedoms when the citizens of other common law countries are not.

Two months ago today, Australia was confronted with the tragedy and sorrow of the Bali bombings, in which so many innocent lives were lost. In the wake of that incident, it became clear that Australia needed to examine and assess its intelligence capabilities in order to effectively combat terrorism in our own immediate region—although, of course, this bill was introduced prior to 12 October. The Democrats are acutely aware of the need to ensure that Australia's intelligence agencies operate effectively in order to protect the safety and welfare of the Australian community. As legislators, we have a responsibility to act in the best interests of those whom we represent. Often this involves a delicate balancing between competing interests. I am sure MPs would acknowledge that we have all received countless emails and letters from people expressing their very serious concerns regarding this legislation and the severe effect that it will have on the rights and civil liberties of all Australians.

I say `all' Australians because the legislation does apply to all Australians, not just those suspected of involvement in terrorist activities. The scope of this bill is perhaps its most disturbing flaw. I believe the government has failed to demonstrate why it is necessary for Australians to be seized, dragged away and questioned by ASIO, when citizens of other nations are not subject to such draconian powers under comparable legislation. It seems to me that the tragedy of Bali has united all Australians in our resolve to fight terrorism and prevent further attacks, particularly in our own region. I do not believe that either the government or the opposition, despite being asked on numerous occasions, has provided any compelling arguments or reasons as to why such power is necessary in Australia when it has not been considered necessary in comparable jurisdictions such as the United States and the UK.

Of course, we must consider appropriate arrangements for the detention of terrorist suspects and for the questioning of those involved in terrorist activities. However, the government has yet to make out its case for extending such arrangements to all Australian citizens. I believe that an honest assessment of this legislation should lead to the conclusion that it is not ordinary, everyday Australians who are at issue here. There is no evidence to suggest that Australian citizens would be unwilling to assist ASIO or any intelligence or law enforcement agencies in the gathering of information relating to terrorism. The fact that the government finds it necessary to detain us incommunicado and threaten us with imprisonment if we do not answer questions is very worrying.

My understanding of the Australian people leads me to believe that such powers are entirely unnecessary and unjustified and, indeed, offensive to many within the Australian community. Of course, there are a number of other concerns associated with this legislation, despite the significant improvements that I will acknowledge have been made over the past few days. These include the fact that the right to silence is removed; there is only a limited use immunity in relation to information provided by the person; foreign nationals detained under the act will be prevented from contacting their embassy during detention; and police powers are vested in an intelligence agency, raising serious questions about accountability implications.

Where does that leave us? At the end of 2½ days of debate and discussion in the chamber we have a bill that, I would argue, effectively changes ASIO from an intelligence service into an investigative police power and in some way sees ASIO become a secret police without the accountability or experience of, arguably, the Australian Federal Police or the newly formed Australian Crime Commission. The constitutionality of the legislation is suspect and potentially breaches the separation of powers. The introduction of this legislation takes place, as I said, in an environment in which there is no bill of rights.

The legislation applies to all Australians, regardless of whether they are suspected of terrorism, and in this respect is more far-reaching than legislation that has been enacted or proposed in either the UK or the USA. There is no right to silence and no privilege against selfincrimination. A detainee would bear the burden of demonstrating that they did not have the information ASIO is seeking and thereby effectively reversing the presumption of innocence until proven guilty. The government has failed, I believe, to demonstrate why the legislation is required and has failed to show where existing criminal laws and policing powers are inadequate to deal with terrorism and suspected terrorists.

Most of all, I think it is worth noting yet again—and I do not think we can say this often enough—that the full effect of this legislation, if it were to become law, would be to enable non-suspects to be immediately detained just because they might have information relating to terrorism. I have to pose the question: what is the point of that? I would like to quote Professor George Williams, whose contribution to this debate was significant. He said:

Despite the many amendments that have been made to the bill, it remains rotten at its core.

On that basis, and in defence of what we believe are appropriate civil liberties and freedoms and the protections for those, we Democrats will oppose this legislation.