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Thursday, 17 October 2002
Page: 5361

Senator FAULKNER (Leader of the Opposition in the Senate) (9:54 AM) —The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 was introduced into parliament on 21 March this year, one week after the government introduced its five antiterrorism bills. These six bills formed the bulk of the government's legislative response to the challenging security environment post 11 September 2001. Now, following the horrific bombings in Bali on 12 October, terrorist violence is no longer just a threat to Australia; it is a reality. The Australian government must act but not overreact. Our response must be strong, measured, proportionate. Australia's defences against terrorism may need to be strengthened. The Prime Minister has announced a wide-ranging national security review. That is appropriate. For the review to be worth while, it must be based on careful assessment of potential threats, not politically charged rhetoric and alarmist headlines. We must resist the temptation to legislate just to be seen to be acting.

Now, just three days after the Prime Minister's call for an urgent review of domestic security legislation, we are debating a bill that has been before the parliament since March. Bringing the ASIO bill on for debate today would be prudent if it could somehow help our efforts to track down those responsible for the horrific bombings in Bali. Unfortunately, it will not do that. Make no mistake: the ASIO bill is a controversial bill that will radically change many of the accepted principles of law and policing in Australia. Our most important defences against terrorism are comprehensive and effective laws enforced by properly resourced police, security and intelligence services. ASIO is our most important security and intelligence agency, but Labor is deeply concerned that the secret detention regime proposed by this bill would undermine ASIO's status in the community and its ability to effectively gather intelligence.

In assessing the government security legislation, Labor has been guided by the desire to protect citizens both from terrorist attack and from attacks on their rights. We have always regarded the laws underpinning our national security as being of the utmost importance. We consider the protection of the democratic rights and liberties of Australian citizens to be equally important. These principles cannot be traded off against one another. We must be vigilant in taking measures to protect the community from terrorist threats. We must be equally vigilant in protecting civil liberties and democratic freedoms. In June 2002 parliament passed tough new antiterrorism legislation. New offences were created with appropriate penalties, including a life sentence for preparing and planning a terrorist act. At the Press Club on 11 September this year, the Prime Minister said he believed that parliament had got the balance right with the five antiterrorism bills passed by the parliament in June. The opposition shares the Prime Minister's view, but Labor also stands ready to consider on its merits any further legislation that the government may wish to bring forward.

I would like to turn to the specifics of the bill. The Attorney-General began his 23 September opinion piece in the Australian newspaper with a rhetorical question: should ASIO be given new powers to gather information that could avert terrorist attacks on Australia? It was no surprise that the Attorney-General answered yes to that question. But another question must be asked: should ASIO be given unprecedented new powers to detain in secret Australians who are not themselves suspected of any wrongdoing? That is a serious question raised in this legislation, and Labor's answer is no. Labor has voted against the ASIO bill in the House of Representatives because, even with the amendments made in the House, it involves radical departures from established legal and human rights principles. Labor will not support laws that attack the same democratic rights and freedoms we are seeking to protect from terrorism.

Under the amended bill, Australians not suspected of any offence could be detained in secret for questioning by ASIO. They may be detained for up to seven days. ASIO has never had powers of coercion and detention before. This is a proposed regime of detention without charge. A person not suspected of any wrongdoing, but detained because they may possess information possibly relating to terrorism, would have fewer rights than a person arrested by the Federal Police on suspicion of murder or treason. Australians detained by ASIO would not have guaranteed access to legal advice for the first 48 hours of detention. Even then, they would have access to government-approved lawyers. They would not be able to confer in private with their lawyer; they would only be able to do so in the presence of an ASIO officer. ASIO would still have the power to detain children aged 14 to 18 years for questioning. Fourteen- to 18-year-olds are recognised as having criminal responsibility under the criminal law, but this bill is not about dealing with criminal suspects; it is about intelligence collection. It provides for detention without charge. This bill goes further than corresponding legislation in other countries facing terrorist threats, like the United States of America, the United Kingdom and Canada.

Labor does share the concerns of many who have spoken out against this bill: that it may establish part of the apparatus of a police state, and that its provisions would not be out of place in a dictatorship. These are real and legitimate concerns, given the assault upon established legal principle contained in this bill. In assessing the government's other antiterrorism legislation, we have been guided, as I have said many times, by the desire to protect Australians from terrorist attacks and to protect the rights and freedoms of Australian citizens. That is why we insisted on strong and principled amendments to the government's earlier antiterrorism legislation. That is why we do not support the extraordinary and unprecedented measures contained in this bill.

Australia's antiterrorism laws may need further strengthening, but this must be based on careful and realistic assessments of potential threats to Australia and the capacity of our police and intelligence services and agencies to meet them. In this regard, the preliminary findings of the US joint congressional intelligence panel's inquiry into the intelligence warnings prior to the September 11 attacks should be noted. It found that the primary failings of American intelligence agencies were not in the area of intelligence collection or in the area of the adequacy of powers, but failures of analysis. US intelligence and security agencies failed to prevent September 11 not because they lacked coercive powers such as those proposed in the ASIO bill but because they failed to appreciate the significance of the intelligence information which was available to them from a wide variety of sources.

The Labor Party wants ASIO and the Australian Federal Police to hunt down and deal with the terrorists, but only terrorists. We want to protect peaceful, law-abiding Australians from infringement of their rights. Australia's security and intelligence agencies already have strong capabilities to detect and respond to terrorist threats. ASIO already has extensive intelligence collection powers, including use of telecommunications interception, listening devices, covert searches and inspection of postal articles. ASIO also draws upon intelligence collected overseas by ASIS and the Defence Signals Directorate and through intelligence liaison and sharing arrangements by our major allies the United States, the United Kingdom and many other countries. In addition, the ability of the Federal Police to investigate terrorist activities has been broadened with the enactment of new offences relating to terrorist organisations.

Two parliamentary committees found the ASIO bill would be open to serious abuse. Both described it as one of the most controversial pieces of legislation considered by this parliament in recent years. The Joint Statutory Committee on ASIO, ASIS and DSD made 15 substantive recommendations intended to go towards making this bill more acceptable. The Senate Legal and Constitutional Legislation Committee did not conduct a detailed inquiry into this bill but reserved its right to do so if the government did not accept all of the joint committee's recommendations. The government's amendments to the bill do not adequately address the concerns of these two committees. The amendments fall well short of what the joint committee considered the minimum necessary for the bill to be acceptable. Even more importantly, the government still proposes that people not suspected of any offence may be detained in secret for up to seven days. In contrast, under the Crimes Act a murder suspect can be detained by police for a maximum of only eight hours. They must then be charged or released. The proposed detention of nonsuspects is extraordinary and unacceptable.

The government also proposes that a person detained by ASIO will not be guaranteed access to a lawyer until after 48 hours. Even then, they would be allowed to consult with a government approved lawyer only while ASIO is listening. We have to ask ourselves: if the United States, which is the main target of terrorists, can allow citizens who are detained to have access to lawyers, why is it proposed to deny Australians this fundamental right? The detention in secret of persons not suspected of any offence is quite alien to our system of justice. Some consider it as being unconstitutional.

Labor will move to refer the ASIO bill to the Senate Legal and Constitutional References Committee to examine alternative ways of enhancing the capacity of our law-enforcement agencies to counter terrorism without compromising civil liberties. The earlier review by the Senate committee reserved the right to examine the bill in detail if the government did not adopt all of the joint committee's recommendations. The government has not done so and I think it is appropriate now for the Senate committee to revisit the matter and explore the alternatives. There has been a claim, and a very unfair one, from the Attorney-General that Labor is toying with this legislation at the expense of national security. We have never done that and we never would. We are not toying with it. Labor's preparedness to deal very seriously with national security legislation was demonstrated for all to see inside this parliament and outside it by our handling of the antiterrorism bills passed by parliament before the winter recess. Our approach was constructive and it was principled. Labor stands ready at all times to consider proposals—any sensible proposals at all—that will help protect Australians and uphold the values that we all hold dear. This bill does not achieve that. I am therefore moving on behalf of the opposition the second reading amendment which has been circulated in my name:

At the end of the motion, add:

“But the Senate:

(a) notes with concern that:

(i) the Government's response to the report of the Parliamentary Joint Committee on ASIO, ASIS and DSD is inadequate;

(ii) the Government proposes that, for the first time, Australians not suspected of any offence could be detained by ASIO for questioning;

(iii) the Government proposes those detained by ASIO do not have the right to legal advice for the first 48 hours of their detention;

(iv) the Government proposes children can be detained by ASIO for questioning; and

(v) the Government's proposals will significantly change the role of ASIO by giving it powers of coercion and detention, and

(b) therefore refers the ASIO Legislation Amendment (Terrorism) Bill 2002, together with the following matters, to the Senate Legal and Constitutional References Committee for inquiry and report by 3 December 2002:

(i) the development of an alternative regime in which questioning to obtain intelligence relating to terrorism is conducted not by ASIO but by the AFP, including appropriate arrangements for detention of terrorist suspects, and questioning of persons not suspected of any offence;

(ii) the relationship between ASIO and the AFP in the investigation of terrorist activities or offences;

(iii) the adequacy of Australia's current information and intelligence gathering methods to investigate potential terrorist activities or offences;

(iv) recent overseas legislation dealing with the investigation of potential terrorist activities or offences; and

(v) whether the Bill in its current or amended form is constitutionally sound”.

I commend the opposition's approach to the Senate.