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Thursday, 12 December 2002
Page: 8153


Senator FAULKNER (Leader of the Opposition in the Senate) (9:11 AM) —The opposition opposes the motion. There have been four key principles that have driven the opposition's approach in relation to this legislation. The first of those principles is that we believe that we should not create a detention regime for non-suspects. We believe that it is appropriate, however, to create a questioning regime similar to those that are used in a range of other investigatory bodies. The second principle that we have made absolutely clear is that we do not believe that this regime should apply to children under the age of 18. The third principle that we believe is important is that people being questioned should have access to a lawyer of their own choice. The fourth principle that we believe is crucial is that there should be a sunset clause, and that is now a principle that the government have accepted. I am pleased that they have.

I heard from the Manager of Government Business in the Senate, as he moved this motion, that we are dealing with matters of fundamental principle. Last week, according to Australia's Attorney-General, Labor's amendments were nitpicking. That is how he described them. They have evolved from nitpicking to questions of fundamental principle. I actually do think these things are matters of significant principle but I do not believe that the Attorney-General of Australia can have it both ways. But there is now a last chance for the government to decide whether it will support the Senate amendments when the bill returns to the House of Representatives. We should make it absolutely clear that the opposition is offering the government a tough compulsory questioning regime for ASIO. That is what is on offer for the government and it appears that that is what the government does not want to accept.

Under the Senate's proposals, ASIO will be able to question people who may have information which would assist in the investigation of terrorism offences. ASIO will be able to demand information and documents. There will be no right to silence for those people being questioned, and questioning can continue for 12 hours and, in certain circumstances, for up to 20 hours. But, as well as that, the opposition has said that if you are going to have these coercive powers in the hands of an intelligence agency like ASIO then you have to ensure that those people who are being questioned have the full protection necessary—that they have all the necessary protections of the law and all the necessary safeguards for such a coercive regime. We have ensured that they will have a right to a lawyer of their own choice. We have tried to ensure that the questioning will be supervised by a senior person—that is, by a retired judge, who would be someone of standing in the community and someone the community would have confidence in.

It is very important to realise that this regime is very similar to that which has been in place for years in royal commissions, state crime commissions, the Australian Securities and Investments Commission, ICAC and other similar agencies. The opposition has taken the view that if we need such powers to prevent corporate crime or shenanigans going on in local government then we certainly need them to prevent terrorist attacks. The government's original bill would have allowed people to be detained, strip searched and held by ASIO indefinitely, incommunicado and without access to a lawyer. We said that that regime was simply not on. We would not accept it. No reasonable person in our community would accept it. How can you possibly justify treating like that a person who is not suspected of any offence but is simply thought to be able to assist with information relevant to the investigation of a terrorism offence? How could you treat such a person, who is not a suspect, worse than a murder suspect? How could you accept a regime where you treat a person who is not suspected of a terrorist offence worse than someone who is suspected of a terrorist offence?

So what we did and what the Senate offers the government, through its amendments, is a tough, practical and workable regime for ASIO. It is a regime that can be implemented now. It is a regime that can be implemented right now and will be in place right now— not on Christmas Day—if the government, in the House of Representatives, passes this bill. This is the same bill that a couple of hours ago, earlier this morning, was unconstitutional. But now, a couple of hours later, it is constitutional. It is a miracle! All your Christmases have come at once!

We heard from the Manager of Government Business, in presenting the government's case, that we made much of state judges. We put a legal opinion on the table. We made it public. It was confirmed by legal opinions from other eminent constitutional lawyers. They were all strong, they were all clear, they were all consistent—and of course our proposal was constitutional. Because of concerns expressed by the government, we had worked hard to ensure that that was the case.

This bill gives ASIO all the tools to question nonsuspects—people who might know something about terrorist activities—but it also properly ensures that adequate safeguards and protections are in place. We know that a level of terrorist alert is now operating. We say that the government should put this into operation right now. It is a strong regime. It is an unprecedented regime in terms of the powers it offers ASIO. The government should step up to the plate, accept its responsibilities and put it in place today. But we also said that, with these laws, we have insisted on safeguards and will continue to insist on safeguards. Basic rights, such as legal representation, should be protected, and we have worked to do that—rightly so. It has always been done in this parliament, and we are going to do it for this legislation. We did not want these powers to go where no other Western democracy has gone before, in denying citizens legal protection and creating a rolling, secret detention regime. We did not want it, and we would not accept it. We still do not accept it, and we are not ashamed of that.

The ASIO director, Dennis Richardson, wanted ASIO officers to be able to question nonsuspects. Under this regime, he has got it. The Senate has allowed that to occur. Amendments passed by the Senate ensure that we have a questioning regime, not a detention regime. I am absolutely confident that ASIO will be able to work, and work effectively, with the bill that has been amended by the Senate. People can be confident that questioning will be properly overseen, that there will be adequate protections and safeguards in place and that democratic freedoms and liberties will be protected. I want to see this bill passed. I know that what is said about the threat to our community is real. I want to see it passed, and all my colleagues want to see it passed. I can say that with absolute confidence. Although we hear the slurs from the Liberal Party, including from the Prime Minister this morning on radio, that the Australian Labor Party is divided on this legislation, I can say to this Senate and the parliament that every single decision that the federal parliamentary Labor Party has made about this bill—every decision that the caucus committee has made about this bill—has been unanimous. Every single one has been unanimous; and that is pretty bloody unusual for the Labor Party.

Let us nail that canard. Our party have worked very hard to come to a position that we believe is defensible and principled and is right for Australia in these circumstances. We believe that we have the balance right, and we know that the government can now accept this regime. The government can now hand unprecedented coercive powers to ASIO. ASIO has always been able to question people, but now it can question people who may have information about terrorist activity, and there is no right to silence. These are unprecedented coercive powers, but when you give unprecedented coercive powers to an intelligence agency you have an obligation in a parliament to ensure that proper protections and safeguards are in place. You have to get that balance right. I believe that the Labor Party have worked extraordinarily hard to get that balance right. After listening to technical criticisms from the government, we have acted upon them every step of the way. We have negotiated with the government. We have heard what they have said, even though there are myriad conflicting messages. I believe this balance is right. I believe that the right thing for Australia is to see this legislation passed, because it does enhance our security environment, it does protect Australians and it is the right thing to do. (Time expired)