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Thursday, 12 December 2002
Page: 8094


Senator ROBERT RAY (4:13 AM) —Tonight the government has a choice between the national interest and political opportunism. Having listened to that dirge read into the record by Senator Campbell tonight, it is clear that they have chosen the latter. Why do I suspect that the key calls on this legislation are being made not out of the Attorney-General's office but out of the Prime Minister's office? This legislation should not be about a macho competition. It is not about who can be the most draconian; it is not about who can impress people by being the most severe. What we want is a balanced piece of legislation because of which the community can look up to ASIO, admire it, respect it and not regard it as some sleazy secret police outfit that they have to fear because their own rights will have been destroyed by an instrument given out by this parliament.

I cannot understand how a national institution like the Australian Broadcasting Commission can have a lead story tonight that talks about this legislation being to do with suspects. This legislation, as the government would acknowledge, is about suspects and non-suspects. It is about an intelligence gathering exercise, not an evidence gathering exercise, but it appears that the lead story on the ABC tonight is about a bill dealing with suspects. How pathetic can you get!

I have heard the government say that they would not contemplate any further amendments. I heard Senator Campbell say, `We won't accept any amendments that go to matters of principle.' Why don't we examine the original principles that the Attorney-General put in the legislation and introduced in this parliament that are no longer principles, to show that this government are willing to compromise and ditch stupid suggestions, but that for political reasons they will no longer contemplate doing that? The original legislation said, `No legal representation at any time for any one who is detained.' That was their principle just six months ago, but it is no longer extant. Now they say, `We'll keep you for 48 hours, but then you can have a lawyer.' Their second great principle was unlimited detention. In the original legislation, there was no seven-day limit— that was a suggestion of the joint committee. They would have been able to detain somebody by way of warrant forever and not have it disclosed—akin to the South African apartheid regime.

In the original legislation, you could take a 10-year-old child off the street, not tell its parents and question it without legal representation. That was your original principle. Do you stand by that today? Do you stand by your original intention that you could strip-search a 10-year-old girl? No; you have dumped that. So we now call on you to dump the other ridiculous things that you have in this legislation. The original legislation was a joke because it did not preclude selfincrimination. You had this joke proposition that, if you got called in for questioning, you had a choice: you could admit to being a terrorist and get 25 years, or you could stay silent and get only five years. How would that assist an intelligence-gathering operation? That was one of the principles of this government. The government stand by principles today that they say are immutable; yet six months ago other immutable principles were changed. You have said that you do not want a sunset clause. We want a sunset clause because we want to see how this operates. If it operates well, people on this side of the chamber and the opposition will renew your mandate on the legislation. If it does not work, it will not exist any further. The opposition are very reluctant to use sunset clauses. We rarely use them. We did not use them on any of the terrorist bills, but on this particular one we think a sunset clause is absolutely essential.

In the original bill, there was no provision for publishing the number of warrants sought or executed by ASIO. That was in the original bill. Neither the public nor this parliament nor anyone else would have known how many people had been detained for questioning. Now the government has agreed to it. So, what was once a principle—immutable—has been changed. We heard Senator Campbell go on at length tonight about what he regards as the dubiousness of our proposed prescribed authority—because we use state judges, not federal judges. In the original legislation, federal magistrates were to do this role—chapter III appointments. The very legal advice that you referred to tonight, which may—and only may—preclude state judges, certainly precludes federal magistrates. Why did you make that mistake? Why did you have that principle? Why have you abrogated that now? Why didn't you think of it at the time? And what have you forgotten at the moment to think about?

The worst aspect of this legislation as it was originally conceived was that there were no protocols whatsoever as to questioning. In other words, you could detain someone in an unlimited way, provided you could get the warrants extended, and you could question them for 48 hours on end. You had no protocols on questioning at all. You had no protocols as to where they could be detained. We did not know whether you were going to reopen Boggo Road or whether you were going to take them to the Hyatt Hotel to question them. We knew nothing. There had been no thought given to it until the various parliamentary committees pointed this out, and then the legislation got changed again. Not least of the problems with the legislation was the appalling drafting in the bill. I will give you one example. Part of the drafting said that, if you were to be detained, if there were a warrant for your detention, it had to be executed immediately. But there was no follow-on provision that you had to be questioned immediately. You could have been held for 20 days, for all we knew. The clock would start for the 48 hours the moment the questioning started.

The minister at the table comes in here and assures us that there should be no more changes because the government have got the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 perfectly right. They did not have it perfectly right six months ago, so why should we believe them tonight? Why should we think that the regime that they are proposing is correct and absolutely perfect tonight, when they have made so many errors in the drafting and principles of this bill in the past?

One of the problems is that the government have not responded to the Parliamentary Joint Committee on ASIO, ASIS and DSD. We made 15 recommendations to change the bill. The government have picked up 10, modified two others and rejected three, but we do not know why. Even though the report was introduced five or six months ago, there is no formal government response on the table. We do not know their reasons. They often point to the joint committee and say, `We've picked up this recommendation and we've put it in the legislation.' Why didn't they pick up the sunset clause? What is their explanation for that? We do not know, because they have not responded to that parliamentary report. The government constantly refer in a defensive way to the fact that there have been three parliamentary inquiries. In reality, there have been two. I do not think anyone would argue that the Senate Legal and Constitutional Legislation Committee had an intensive inquiry into this bill, because they ceded that to the joint committee.

Minister Ellison claimed earlier today in his speech in the third reading debate that the opposition is divided on this legislation. I am blowed if I know what evidence he has for that. I suppose it is pretty rare for Daryl Melham, John Faulkner, Robert Ray and Kim Beazley to put in a joint submission, but we are of a unanimous view. If you like, we are the ideological extremes—the Berlin-Moscow alliance has come together and has a unanimous view on this legislation. Can senators opposite make the same claim? Of course they cannot. We know that there is great disquiet about this legislation on the government side. That is why every time a parliamentary committee reports courageous coalition members have agreed to further modifications of the bill. There is no evidence to back up Senator Ellison's claim.

I will address the argument that this bill is unworkable or unconstitutional. As Senator Faulkner has said tonight, if it can be shown to us in a demonstrable way that there is constitutional doubt about this legislation by way of our amendments, of course we will consider that. We do not want to sink this legislation through some High Court challenge. If it is at all in doubt, we will meet the government and negotiate on this and amend where necessary our proposal on a prescribed authority to ensure that it is constitutionally sound. But we have at least tabled our legal advice from Mr Gavan Griffith QC, who states:

State judges are commonly vested with nonjudicial power and there is no difficulty about this even though they may also exercise federal judicial power.

Where is the response from the government? It was tabled tonight in a letter making claims about the views of Mr Orr QC. Frankly, I do not want to go to the monkey; I want to go to the organ grinder. I want to see the original advice. I do not want to see someone else's interpretation of the advice. Let us see Mr Orr's advice. If it is compelling we will give in on that aspect, because we do not want any doubt whatsoever.

Part of the confusion that surrounds this bill—and again it was repeated today by inference by Senator Ellison—is that that somehow the opposition do not understand the difference between a regime that questions for intelligence and a regime that questions for evidence. I think we have thoroughly understood that from the start. We have always been conscious of the difference. That is one of the reasons why the questioning regime in this bill could be more strenuous and more onerous than a questioning regime for a murder suspect. We understand that, though not all critics have understood that all the way through.

Senator Faulkner referred to the press conference held today by the Attorney-General. The Attorney-General got so confused that he accused the opposition of taking the sunset clause out of the legislation—talk about a carcass swinging in the breeze. I was embarrassed. I always thought Senator Kemp's performance on the 7.30 Report was the worst interview ever. That is the one we run at our training seminars for senators to show them how not to do it. I invite everyone to watch the Attorney-General's lamentable performance. As a professional politician, I did not take much joy from it. In the end, we said to Senator Faulkner, who was showing us: `Turn it off. We can't stand it any longer'.

Labor's support for this legislation will bring us vilification. Elements in Australian society will call us `sell-out merchants' for supporting the legislation. There is no doubt about that. We are big enough; that is the sort of role that we have to have. We have to approach these issues and act in a way that we would have in government—not with an oppositionist mentality, not as people who just want to needle the government on all these issues. We do not want to do that.

On issues to do with combating terrorism we endorse a bipartisan policy. We have come part of the way. The government has come no way at all to try to meet us on these issues. We have tried to put in a balanced regime: one that says that you have to give up the right to silence—that is a big step; one that says that non-suspects can be detained. These are difficult issues for us on this side of the chamber. I suspect they are difficult issues for a lot of people on the other side of the chamber. But we have come that far. Having come that far, do not take all their rights away. Do not take away their right to legal representation. We have even constrained that in terms of several let-out clauses that protect ASIO from disclosure of what they are up to.

What we are facing here today is whether the government will come to the opposition and have meaningful negotiations on these matters. There have been dilatory attempts over the last few weeks, and even tonight. I acknowledge that. There are five or six fundamental issues on which we are apart. I know the view in the government ranks is that when they put the blowtorch to us we will fold on this and we will pass the legislation. We will not. We are not going to pass the legislation as the government want it, because the government are wrong. What we do offer them is a piece of legislation that ASIO will find workable and useful and which will lapse in three years time. If the government do not believe the legislation is strong enough at that time, they can bring a different bill into this chamber. But I am sure that, if you ask the people at ASIO whether the bill as amended by the Senate is sufficient for their purposes, you will get an unequivocal yes.