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Thursday, 17 October 2002
Page: 5369

Senator KIRK (10:48 AM) —I rise to speak today on the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002. This bill has been described as one of the most controversial pieces of legislation considered by this parliament in recent times. In my first speech in this place, I spoke of my commitment to the protection of civil liberties of Australian citizens against government legislation that seeks to unduly or unnecessarily infringe those fundamental freedoms.

In this past week, Australians have suffered one of the most tragic and devastating events in our nation's history. Of course, I refer to the bombing of the Sari Club on the Indonesian island of Bali. This tragic event followed just a short time after we remembered the first anniversary of the tragic loss of life in the United States on 11 September 2001. Since the events of September 11, Australia's antiterrorism laws have undergone a much needed update. Before September 11, there were no Commonwealth laws dealing specifically with terrorism; such laws existed only in the Northern Territory. Labor recognised that antiterrorist measures needed to be strengthened. Accordingly, Labor worked with the government to enact appropriate laws. Parliament has now enacted the first round of antiterrorism legislation, following significant amendment by Labor to remove the more draconian provisions of these laws. It cannot be questioned that Australia needs a national legislative response to address terrorist activity. However, new measures must strike an appropriate balance between, on the one hand, national defence and security and, on the other hand, civil liberties and human rights. As Professor George Williams has said, we must not pass laws that undermine the same democratic freedoms we are seeking to protect from terrorism.

The legislation before the chamber today is, as I said, the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, the ASIO bill. In examining this law, it is necessary to ask the fundamental question I posed above—that is, does this law achieve an appropriate balance between national defence and security and civil liberties and human rights? In making this assessment, it should be borne in mind that the protection of national security is not of itself an end. Any diminution of the rule of law or human rights effected by national security legislation must be proportionate to the actual or perceived threat. Professor Williams said:

The case for derogating accepted rights and key elements of our democracy must be fully justified and carefully scrutinised.

Academics and others who have made this assessment of the ASIO bill before us today have concluded that it does not strike an appropriate balance between protection of national security and civil liberties. It is for this reason that Senator Faulkner, on behalf of the opposition, has indicated that the opposition will be supporting the referral of this bill to the Senate Legal and Constitutional References Committee for further examination.

The bill in its current form would authorise the detention of Australians, including children, without charges being laid against them. Australian citizens could be detained by ASIO not because they have engaged in acts of terrorism or are likely to do so but because they may substantially assist the collection of intelligence that is important in relation to a terrorism offence. The bill in its original form would provide that such people could be held without access to legal advice and without the normal right to silence and the right to avoid self-incrimination. A five-year jail term applies for refusing to answer a question, and information may be used in the prosecution of a terrorism offence.

As many other speakers have mentioned, this bill has been referred to two committees of this parliament which have undertaken reports into this bill. There was one report by the Parliamentary Joint Committee on ASIO, ASIS and DSD and a second inquiry by the Senate Legal and Constitutional Legislation Committee. As other speakers have said, both committees found that in its current form the bill would be open to serious abuse as a consequence of the significant increase in unchecked executive power that this bill will confer.

The joint parliamentary committee found unanimously that the bill would undermine key legal rights and erode the civil liberties that make Australia a leading democracy. Despite this sweeping condemnation of the bill, the committee made only 15 recommendations for amendment to the bill and these were limited to its operational aspects. The committee proposed a number of important amendments, including a seven-day limit on detention, a requirement for representation by security-cleared lawyers of individuals held in detention, and protocols governing detention and interview which will be subject to parliamentary scrutiny. Further, it proposed that there be protection against self-incrimination, that anyone under 18 years of age be excluded from interrogation and detention, that there be accountability and reporting measures in relation to warrants issued and, finally, that a three-year sunset clause be inserted.

The report of the Senate Legal and Constitutional Legislation Committee focused on whether the executive can authorise the detention for questioning of someone not suspected of any offence and whether the issuing of such warrants by magistrates is an exercise of judicial or executive power. The Senate committee recommended that the bill not proceed if the government refuses to accept the recommendations of the joint committee to which I referred. Unfortunately the government has indicated that it supports only 10 of the committee's 15 recommendations. Time does not permit me to address all of the joint committee recommendations that were accepted by the government, but I will mention a few of them.

Recommendation 1, which was accepted, aimed to ensure that only federal magistrates issue all warrants and federal judges issue all warrants where detention will exceed 96 hours. The original bill authorised members of the Administrative Appeals Tribunal to issue warrants. To have permitted members of the AAT to issue warrants would have established a dangerous precedent because such individuals are now appointed for fixed and limited terms and lack the entrenched independence and tenure of judicial officers. Whilst the government has accepted that members of the AAT are not appropriate officers to issue warrants, federal magistrates and judges remain permitted to do so. It has been suggested that this may amount to an unconstitutional conferral of non-judicial powers on a chapter III judicial officer. In the case of Grollo v. Palmer the High Court held that non-judicial powers, such as granting a warrant, can be conferred on a federal judge in his or her personal capacity, but only where the function so conferred is not incompatible either with the judge's performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power. There are strong arguments that have been made that it is quite probable there would be a successful High Court challenge should this bill be enacted in its current form. The reason for this is arguably that the conferral of such non-judicial powers as the issue of warrants on chapter III officers could well be regarded as incompatible with their exercise of judicial power.

Other joint committee recommendations that the government has accepted are as follows. Recommendation 2 suggests that a provision be included giving the Attorney-General the power, by way of regulation, to nominate an authority that can issue a warrant under the bill. Recommendation 3, which was accepted, is that the maximum period of detention be limited to seven days, after which a person must be released. Recommendation 4 proposes a requirement that the Director-General of ASIO must seek the consent of the Attorney-General before requesting further warrants on a suspect. Recommendation 5 aims to ensure that people are immediately brought before a prescribed authority.

Recommendation 8 is that people be given protection against self-incrimination for the provision of information relating to a terrorism offence. Recommendation 9 suggests the introduction of penalty clauses that will apply to officials who do not comply with the provisions of the bill. Recommendation 11 requires disclosure by ASIO in its declassified reports of the total number of warrants issued under the bill. Recommendation 13 advises that the Director-General of ASIO should notify the Inspector-General of Intelligence and Security every time he seeks the minister's consent to a warrant. And, finally, recommendation 15 suggests a requirement that people must be advised that they have the right to seek judicial review of their detention after 24 hours.

While the measures I have referred to do improve the bill, the government, unfortunately, rejected five of the most important recommendations of the joint committee. I refer firstly to recommendation 6, which is in relation to lawyers. The joint committee recommended that the bill be amended to provide for legal representation for people who are the subject of warrants within a framework for the appointment of security-cleared lawyers. The government has proposed an alternative model whereby a person must be provided with access to a security-cleared lawyer after 48 hours detention. This inevitably raises the question of what is to happen to people who are held during those first 48 hours. The government further proposes that once a person has access to a lawyer they cannot consult privately with that lawyer. Labor believes that the critical first 48-hour period without a lawyer is unacceptable. Even when a person does have access to a lawyer, it is not possible for them to consult privately with them without ASIO representatives being present. This is unacceptable.

Recommendation 7 is about protocols in relation to the custody, detention and interview process. These protocols must be developed before the legislation can proceed. Recommendation 10, in relation to children, is another important recommendation of the committee. The government has proposed that children under the age of 14 not be detained or questioned and that children aged between 14 and 18 only be detained if they are under suspicion and have a lawyer, a parent or a guardian present. The government argues that the age of 14 is appropriate because it corresponds to the age of full criminal responsibility. Labor believes it is inappropriate that government propose the same time periods for detaining children as for adults. In relation to these provisions, Dr Jenny Hocking of Monash University said:

It is extraordinary that a democratic nation adhering to notions of the rule of law can even contemplate the passage of legislation which would permit children to be taken and held incommunicado without their parents' knowledge, let alone consent. That children can be held without suspicion of their involvement in any offence, without legal representation, strip searched and questioned is an appalling proposal and one which has no place in a humane and just society.

Labor considers it abhorrent that children be treated like terrorists. These provisions contravene up to six articles of the Convention on the Rights of the Child. It is wrong to subject children to such laws. Labor wants children excluded from detention under this bill, just as we wish to see all children released from migration detention centres in this country.

Recommendation 12 proposed that a sunset clause be inserted so as to terminate the legislation after three years. The government has opposed this recommendation. Labor agrees with the joint committee, however, that a sunset clause is necessary because it would represent a significant accountability mechanism. It will ensure that there is continued public debate about these provisions and their necessity in future circumstances. As Professor Williams said:

Without such a clause this Bill cannot be seen as a short term immediate response to September 11. It will bring about a permanent change to law-enforcement in Australia and it will entrench the notion that the detention of people who may have useful information is an appropriate tool for the gathering of information about criminal activity.

Labor has two further concerns about the bill. Firstly, we are concerned that it allows for Australian citizens who are not suspected of any criminal activity to be detained. This is a fundamental and unacceptable departure from established legal and human rights principles in this country. These measures go further than equivalent laws in the United States and the United Kingdom—for example, while United States law permits the detention of aliens without charge, it does not allow the detention of its own citizens. Professor Williams has said that this bill would establish the apparatus of a police state and that it would not be out of place in some former dictatorships. If the bill is enacted in its current form, Australians not suspected of any offence could be detained by ASIO for questioning.

Secondly, Labor is concerned that the bill allows people to be questioned by ASIO rather than by a law enforcement agency. ASIO has never had such powers before, nor should it. ASIO already has extensive powers to investigate terrorist activities, including the use of telecommunications interceptions, listening devices and the like. Most fundamentally, the bill does not achieve an appropriate balance between the protection of national security and fundamental civil liberties. The Australian people will not and should not accept the infringements on civil liberties that this bill will effect. As Senator Faulkner said, Labor supports the referral of this bill to the Senate Legal and Constitutional References Committee, of which I am a member. The committee must be given the opportunity to examine alternative ways of enhancing the capacity of our law enforcement agencies to counter terrorism without compromising civil liberties. The government has had more than 12 months to develop laws that will provide appropriate measures to combat terrorism without compromising civil liberties.

This bill was introduced into the parliament in March. It was debated in the House of Representatives last month. Today the government has brought this bill before the Senate, just five days after the Bali tragedy. This bill has the appearance of a hasty overreaction to the tragedies of September 11 and Bali rather than an appropriate response to the issues facing Australia. We in this chamber and indeed the Australian people have the right to ask how this bill will assist in dealing with the threat of terrorism facing our nation. It is likely that the answer is that the bill may not be particularly helpful.

The bill would confer unprecedented new powers on ASIO that could be used against the Australian people by an unscrupulous government. The powers in this bill may not be used against the Australian people today, tomorrow or even in the next decade, but we cannot speculate about the wisdom and motives of a government or of ASIO in the next decade or beyond. This bill would unduly infringe the civil liberties and fundamental rights of all Australians, and this is why the bill must be referred to the Senate Legal and Constitutional References Committee for further scrutiny.