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Thursday, 26 June 2003
Page: 17657


Mr WILLIAMS (Attorney-General) (12:01 PM) —I would like to indicate to the House that the government proposes that amendments Nos (1) to (15), (17) to (22), (24) to (29), (31), (35), (36), (38) to (56) and (59) to (77) be agreed to; that amendments Nos (30), (33), (34), (37), (57) and (58) be disagreed to; and that amendments Nos (16), (23) and (32) be disagreed to; but that amendments be made in place thereof. I suggest, therefore, that it may suit the convenience of the House to first consider amendments Nos (1) to (15), (17) to (22), (24) to (29), (31), (35), (36), (38) to (56) and (59) to (77); then consider amendments Nos (30), (33), (34), (37), (57) and (58); and, when those amendments have been disposed of, to consider amendments Nos (16), (23) and (32). I move:

That Senate amendments Nos (1) to (15), (17) to (22), (24) to (29), (31), (35), (36), (38) to (56) and (59) to (77) be agreed to.

In addressing these amendments, because there are intrinsic relationships between all of the provisions under consideration, I propose to generally address them all. The government's position on the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 [No. 2] has always been emphatically clear. We need this legislation to give our intelligence agencies vital tools to deter and prevent terrorism, and we have never wavered from this position. Our persistence has finally paid off. Thanks to the government, ASIO will finally get the tools it needs to identify—and, more importantly, prevent—planned terrorist attacks. I welcome the opposition's decision to finally put aside political game playing in favour of national security and support the passage of this important counter-terrorism legislation.

However, it must be said that the debate on this vital bill has been marred by misinformation from the opposition benches and a lack of understanding of how the bill works. Just last week, despite a public commitment to support passage of the bill without further delay, the opposition found itself in a tangle when, during the debate on the bill, it claimed that it had only just discovered that there was a capacity under the bill to seek second and subsequent warrants. No-one else was under the misapprehension that a person who had been the subject of a warrant under the bill would be immune from being the subject of a second or subsequent warrant. It was clear on the face of the bill. The Australian Greens understood it, the Democrats understood it and opposition members on the Senate Legal and Constitutional References Committee appear to have understood it as long ago as November last year. Yet, if their public pronouncements are to be believed, this was lost on the senior members of the opposition tasked with the carriage of the opposition's position on the bill.

In an attempt to cover up their mistake and the political tussle within the opposition which ensued, the opposition has tried to paint this as a government mistake and a loophole, but nothing could be further from the truth. It has always been the government's position that there would be a capacity to seek and issue further warrants, provided that the strict conditions set out in the bill for the issuing of the warrant were met. That was the case under the current bill and previous versions of the bill. The government has always been clear. While the length of time under one warrant period is limited to a continuous period of no longer than 168 hours, we have never said that a new warrant could not be sought or issued, provided that the strict criteria under the bill were satisfied. In fact, we made it abundantly clear that we do not accept that a person who has been the subject of a warrant is then immune from being the subject of further warrants for any period of time.

The government rejected amendments proposed by the Senate references committee which would have prevented the granting of a further warrant for the same person within seven days of the end of the warrant period—in effect, the seven-day immunity period. The government has always made it emphatically clear that it could not agree to any such immunity. Any bar of subsequent warrants would effectively act as immunity, could impede investigations in urgent circumstances and could potentially allow terrorists to perpetrate terrorist acts with immunity for seven days. Indeed, the government has always maintained that to do so would potentially play directly into the hands of terrorists.

Thankfully, the opposition now agrees that a moratorium or immunity period is not appropriate. I note in particular Senator Ray's comments on this point in the other place. However, some members of the opposition continue to insist that the government asserted that the bill granted such a moratorium. In debate in the Senate, Senator Faulkner repeatedly quoted me accepting the proposition that a person could not be detained for a continuous period of more than 168 hours. Senator Faulkner attempted to paint this as an assertion that a person could only be held for 168 hours total—ever, end of story. In his hurry, Senator Faulkner overlooked a vital word—and that was the word `continuous'. The government has always been clear that the length of time under a warrant period is limited to no longer than a continuous period of 168 hours. Warrants cannot be rolled over at the end of this period. We have never said that a new warrant could not be sought or issued. Yet Senator Faulkner repeatedly suggested during recent debate on the bill that the government had somehow suggested that, once the 168-hour period had been exhausted, no further warrants could be sought, and that person would effectively be immune. That is a proposition that I emphatically deny.

Notwithstanding that the government maintains that the effect of the legislation has always been clear on its face and that to deny the opportunity to seek further and subsequent warrants would play into the hands of terrorists, the government moved amendments to further detail this on the face of the bill, having regard to the opposition's public undertakings to pass the bill without delay. The government's amendments make clear the specific test to be applied when a second or subsequent warrant is sought and will ensure that the Inspector-General of Intelligence and Security exercises his statutory power to review the material on which a warrant is based. While we do not believe any more amendments are necessary, we did this to secure passage of this vital bill in the face of a divided opposition. The government has bent over backwards to accommodate sensible suggestions that strengthen and enhance the operation of the bill. But the Australian community demands that our counter-terrorism laws be strong and certain. That is why the government is rejecting a number of the opposition and Democrat amendments that passed the Senate. (Extension of time granted)

In rejecting these amendments I would like to outline some of our reasons for doing so. The government will be insisting on its proposals in relation to the length of time a person can be continuously detained under a warrant being 168 hours. We do not accept amendments that have reduced this period to 72 hours. We do not support amendments that seek to reduce the effectiveness of the questioning regime. Let us not lose sight of the primary purpose of this bill: the gathering of intelligence to help prevent and deter terrorist acts. Under the government's proposal, a warrant would allow a total of 24 hours of detention for questioning in eight-hour blocks over a maximum period of seven continuous days, or 168 hours. The opposition seeks to reduce that period of time to three days, or 72 hours. What the opposition is suggesting is that questioning will need to cease when the maximum period of time—this arbitrary figure of 72 hours—has passed, with little regard to how this may impact on an investigation.

The opposition appears to have simply plucked a figure out of the air and decided that this is the amount of time our intelligence agencies need to do their job. Our intelligence agencies tell us differently. The opposition's proposal does not afford any greater protection to the person being questioned under the bill; it simply reduces the period of time in which important information can be obtained. Let us not forget the significant safeguards in the bill. There are, to quote Senator Ray, `as many hurdles as the Grand National Steeplechase'. Let us not forget that any person can voluntarily give ASIO information they may have without the need for detention. Let us not forget that the questioning time is controlled by the prescribed authority and that, once 168 hours is the total maximum continuous time that a person can be detained, a protocol will place further parameters around the questioning process.

Let us not forget that last December the opposition moved amendments to the detention and questioning regime that provided for a maximum possible period of detention of seven continuous days. The opposition is now seeking to introduce further limitations which go beyond those it was prepared to accept last year. They accepted this time period then but again appear to have changed their minds. The strong safeguards in the bill have been debated exhaustively. The government has bent over backwards to include an extensive range of safeguards and accommodate sensible suggestions that improve the bill without undermining its effectiveness. But we cannot, and will not, accept an amendment that will do just that and that is being put for no good reason.

We do not accept the opposition's proposal to remove notes to subsections 34G(4) and (7). These notes clarify that a defendant bears an evidential burden of proof in relation to proving that they do not have information or records that they are required to give or produce in accordance with a warrant when appearing before a prescribed authority for questioning. This is not the same as reversing the onus of proof. This does not remove the legal burden from the prosecution to prove the elements of an offence beyond reasonable doubt. It is an evidential burden only. The person merely needs to adduce evidence that there is a reasonable possibility that he or she does not have the information, record or thing requested. If the person fails to produce the information or record, and the prosecuting authorities decide to press charges on this point, the prosecution still has to prove its case beyond a reasonable doubt.

Commonwealth criminal law policy is that it should only be allowed in cases where the matters to be proved are peculiarly within the knowledge of the defendant and are difficult and costly for the prosecution to disprove beyond a reasonable doubt. This policy is reflected in section 13.3 of the Criminal Code. Subsections 34G(3) and (6) create an offence of failing to give information or produce records or things requested in accordance with a warrant when appearing before a prescribed authority for questioning. If a matter is peculiarly within the defendant's knowledge—such as the possession or otherwise of information, a record or a thing—in instances covered by the bill, it will be within his or her ability to prove or disprove that matter. However, these offences will not apply if a person does not have the information, or possession or control of the record or thing. This means that, to rely on the exceptions to the offence, the person will only have to adduce evidence that suggests a reasonable possibility on the balance of probabilities that he or she does not have the information, record or thing requested. These notes merely draw attention to the effective existing provisions in the Criminal Code and should remain in the bill.

A key aim of this important legislation is to enable ASIO to question people in emergency terrorist situations in order to obtain the information we need to stop terrorist attacks before people are hurt or killed. While the government has already included a comprehensive set of safeguards against abuse in the bill, we were committed to securing passage of the bill and to considering changes that do not undermine the workability of the bill. We have always said that we recognise that this bill is extraordinary; indeed, I have indicated repeatedly that I hope the powers under the bill never have to be exercised. But this bill is about intelligence gathering in extraordinary circumstances and is subject to significant safeguards. (Extension of time granted)

The government has demonstrated time and time again its commitment to community safety. The government has responded positively to recommendations from three parliamentary committees, addressing concerns raised where they did not undermine the effect of the bill. But until last week the opposition continued to insist on amendments that would have rendered the bill unworkable. For the sake of community safety, the government moved to break the deadlock by developing a set of amendments that addressed the opposition's key sticking points without destroying the workability of the bill. These amendments were accepted by the opposition, which gave a public undertaking last week to support the passage of the bill. Despite this, further issues were raised this week, which have now been resolved following determined government negotiation.

I now call on the opposition to make good their public commitment to support passage of the bill without any further delay. Then ASIO can get on with the job of protecting Australians and Australian interests against terrorism and other threats to our security.