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Thursday, 12 December 2002
Page: 8097


Senator GREIG (4:27 AM) —The Australian Democrats express real disappointment, not surprise, that the government has refused to accept what I think are reasonable amendments—the majority of amendments which the chamber made to this legislation. Notwithstanding the Democrats' continued opposition to the bill as a whole, we concede that making a bad bill better was a good thing to do. Although we ultimately oppose the bill, there is no doubt that the amendments moved and supported by Labor and the Democrats substantially improve the bill and remove most, not all, of its draconian features.

The model proposed by the government, as Senator Ray has reiterated, was particularly harsh. Senator Nettle earlier today described it as an ambit claim. I believe it was. The government's proposal displays a complete disregard for the central tenets of our democratic system and represents a radically disproportionate response to the threat of terrorism. Let us be clear about this: if enacted the government's model would enable the detention of non-suspects—let us be clear that we are talking about non-suspects—incommunicado for a period of 48 hours, which could be extended to a maximum of seven days. The right to legal advice would be abrogated for up to two days in certain circumstances, and even then it would be limited to those who could afford to pay for their own lawyer. Foreign nationals would have no right to contact their embassy.

The right to an interpreter could be negated by the prescribed authority. There would be no right to silence. The person being questioned would bear the burden of proof to demonstrate that they do not have the information requested by ASIO, effectively reversing the presumption of innocence, with an offence proposing a maximum penalty of five years imprisonment. Perhaps worse of all is that these provisions would apply to children over the age of 14. The entire draconian regime would continue indefinitely, with no sunset clause and, as we have said repeatedly, in the context of a political and social environment in which we have no bill of rights; I cannot think of a piece of legislation that I have dealt with in the last four years which more strongly points to the need for one.

In its strong opposition to a variety of amendments, the government has argued principally that it is opposed to the Senate's commendation for a time regime of four hours and then eight hours, as opposed to its proposal. I think that was one of the strongest and most reasonable of all of the amendments supported by the committee. I strongly endorse the proposition for a sunset clause. A sunset clause, if nothing else, offers the opportunity for the next parliament—whatever its political make-up and whatever the Senate dynamic—to review, to reconsider, to reflect. That is something which we should have done here. It is absurd that we should be discussing this important legislation at this ridiculous hour on the last sitting day of the year.

On the question of constitutionality, I would argue that ultimately every piece of legislation that goes through here is open to constitutional challenge. That is the nature of things. But it is about taking a reasonable punt. We have heard legal opinion on both sides. I confess I do not know which is the more correct, but I believe that ultimately that is a decision for the High Court.

Finally, Senator Ian Campbell argued that the government are fervently pursuing this legislation because they want to do what is right in terms of protecting the Australian people and giving the Australian people what they want. I would argue that, given the deluge of phone calls, emails and letters and the overwhelming response from the Australian people to the public committee hearings around the country, the Australian people are deeply concerned about this legislation. Far from being condemned by the Australian community, insisting on the amendments that the Senate proposed would see a chorus of support. We would join in that. The amendments must be insisted upon.