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Thursday, 12 December 2002
Page: 7932


Senator ELLISON (Minister for Justice and Customs) (4:33 PM) —The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 is a very important bill for Australia and one which is essential for ASIO if it is to look after the security of this country. The bill is aimed at intelligence gathering and is essential for an agency such as ASIO in dealing with any threat of terrorism. The government's position on this bill has always been emphatically clear. I reject totally any statement by the opposition that we have in some way been ambivalent. The statements by the Prime Minister and the Attorney-General have made it very clear that we need this legislation to give our intelligence agencies vital tools to deter and prevent terrorism. This is a bill that we need to look after Australia's interests. We have not wavered from this position, and we do not intend to do so now.

Unlike the opposition, which has ducked and weaved the difficult questions on this bill, we are serious about protecting the Australian community. The opposition has itself been divided on this bill, whereas the government have demonstrated time and time again our commitment to community safety. We have been emphatic that the ability to question and detain, in strictly limited circumstances, for the purposes of intelligence gathering to prevent and deter terrorist activity is fundamental to this bill. That is something we have stuck to throughout the whole course of this bill and the inquiries and debate on it.

Let us make no mistake: this bill is designed to enhance the capacity of authorities to combat terrorism and to prevent and deter terrorist activities. It is designed to enable the collection of information about potential terrorist attacks so we can better prevent them before people are hurt or killed. There is no greater human right than to be able to live one's life without fear of attack, harm, assault or even death from a terrorist activity. In fact, the greatest breach of human rights is that which we see perpetrated by terrorist organisations in the world today. We have always said that we recognise that this bill is extraordinary—it is designed for extraordinary circumstances. What we have here is a regime which gives our intelligence agencies the ability to gather that crucial intelligence but which maintains those safeguards that can preserve the interests of the individual.

The government have repeatedly said that we will not entertain proposals that render the bill impotent or unworkable. That is why we voted against the amendments moved by the opposition and the minor parties. We certainly cannot accept amendments that would render the bill unconstitutional either. The opposition's amendment in relation to sitting state and territory judges would do just that. The opposition amendments go to matters of fundamental principles that we cannot accept. We are forced, however, into a position where we have to support the bill as amended to ensure that we can take it back to the House of Representatives and undo the damage that has been done. We do not do so lightly, because the opposition's amendments, as I said, go to the heart of the bill and fundamentally change the nature of what the government have proposed.

The amendments proposed make the bill, at best, unworkable and, at worst, unconstitutional. Our advice is that there is a significant risk in appointing sitting judges as prescribed authorities and that this would be unconstitutional, regardless of whether they be state, territory or federal judges. This advice was confirmed as late as last night and conveyed to the opposition in confidential discussions. We also sought specific advice on the opposition's amendment today in relation to prescribed authorities which again confirms our position that the opposition's amendment will render that part of the bill unconstitutional. Under the opposition's amendment, which was passed with the assistance of the minor parties, sitting state and territory judges will be performing functions under Commonwealth legislation that would give federal executive functions to state judges. Our advice is that there would an unacceptable risk that this would be held to be incompatible with their judicial functions and hence be unconstitutional. The risk is not just an arguable one but a significant one. In the face of such a significant risk and on the basis of advice available to it, the government cannot support the amendment in this form—and I outlined that to the Senate previously.

In my earlier remarks, I mentioned that the government's original proposal was to have AAT members perform the role of prescribed authority and not judges. I would like to clarify my remarks and correct the record. The bill, as originally drafted, did not make a distinction between the role of issuing and prescribed authorities. Under that proposal, the prescribed authority could both issue warrants and preside over questioning, although they need not have done both. The original bill provided that AAT members and federal magistrates could perform this role, but the bill and the explanatory memorandum made it clear that the role of the prescribed authority was conducted as persona designata. I stress that a previous statement that also included federal judges as prescribed authorities was incorrect. Where the record has to be corrected is that we did have federal magistrates in that role.

The Parliamentary Joint Committee on ASIO, ASIS and DSD expressed concerns in relation to this. The committee acknowledged that the High Court in Grollo v. Palmer had decided that the issuing of a warrant by the judiciary is permissible provided that the judiciary exercise the power in a personal capacity. The committee, however, was also concerned about the possibility that federal magistrates presiding over questioning could go further than the decision of Grollo v. Palmer would allow. Under the government's original proposal, the person who issued the warrant need not have been the person who presided over the questioning. Federal magistrates could confine themselves to just issuing warrants. The parliamentary joint committee recommended a splitting of the roles so that judges issued warrants but AAT members presided over them.

The government accepted the concerns and amended the bill in accordance with the recommendations of the parliamentary joint committee. We sought our own advice on the constitutionality of the amended provision. The result was a splitting of the prescribed authority function into issuing authority and prescribed authority. The government accepted that, by splitting the functions, the government's concerns were addressed and the constitutionality of the bill was assured. The opposition, however, has proposed amendments that contradict the parliamentary joint committee's recommendations. The government's advice on the opposition's proposals in relation to sitting state and territory judges is that they pose an unacceptable risk and would be unconstitutional. I reiterate that, on that basis, we cannot support those amendments. If the opposition were serious about this bill, it would not be exposing its amendments to such risk of invalidity.

I will finish by saying that the government is deadly serious about ensuring that the security of this country is met and that there is community safety in relation to the current environment of threat. We believe that this bill is essential to ensuring that. We have taken on board recommendations of the parliamentary joint committee and the Senate Legal and Constitutional References Committee—recommendations which we believe to be constructive. We have not taken on board all of those. There is nothing unusual in that. We have not cherry picked the recommendations, as alleged by the opposition. We have said that we will take on board that which is reasonable, but we will not take on board that which will render this bill unworkable and expose it to constitutional challenge.

We urge the opposition to reconsider its position, to look carefully at the amendments that were put forward and to look carefully at the reason that we have put this bill forward. This bill has been subject to a great deal of scrutiny—no fewer than three parliamentary committees have looked at this bill. That is very unusual for any piece of legislation in the federal parliament. This is unusual legislation, and it is very serious in its objectives, in the powers that are bestowed and in the safeguards that it contains. But one thing should be made very clear: in this current threatened environment, this bill is essential to the package of measures that we need to ensure Australia's safety.

Question put:

That this bill be now read a third time.