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Thursday, 17 October 2002
Page: 5366

Senator LUDWIG (10:28 AM) —I rise to speak on the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002. Before I set out the arguments that I wish to advance, it is worth noting that, to date, there has been An Advisory Report on the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 by the Parliamentary Joint Committee on ASIO, ASIS and DSD. That committee report provided, at least for the Senate, a good overview of the legislation and the issues that surround the legislation that is being proposed. In the report's second paragraph it says:

The Bill is one of the most controversial pieces of legislation considered by the Parliament in recent times. The Bill, in its original form, will provide for a person to be detained for up to 48 hours incommunicado, without legal representation and the right to silence removed. If further warrants were issued, a person could be detained indefinitely.

I will talk about the recommendations shortly, but it is worth pausing to consider the implications of this bill and what that paragraph provides. Removing rights that have accrued to people over a long period of time is something that this parliament should not do quickly, lightly or without serious consideration. This matter should not pass through this house without serious comment and proper debate. To assist in understanding, it might be worth while to set out the purpose of the bill, which was `to enhance the Commonwealth's ability to combat terrorism', firstly, by amending the definition of `politically motivated violence' in the ASIO Act 1979 to include terrorism offences and, secondly, by giving ASIO special powers. The idea was to extend ASIO's capacity to obtain intelligence in relation to terrorist organisations which may operate in Australia and could conceivably do horrendous harm. Those are the principles underpinning the legislation. They are perfectly legitimate and good principles that should be pursued and would ordinarily be accepted and agreed to by me and by the Senate. What has occurred with this ASIO bill, though, is that those premises have been dissected and changed so that the thrust of the legislation has changed to include principles that are not really found in the heading. To put the bill in context, when the issue was first mooted ASIO had identified no present threat in Australia. It is also worth considering that ASIO already has extensive powers to investigate terrorism activities.

Going back to the process that brought us here today, on 21 March 2002 the ASIO bill was referred to the Parliamentary Joint Committee on ASIO, ASIS and DSD, as I have already highlighted, and to the Senate Legal and Constitutional Legislation Committee, which I will speak about further this morning. The reference to the legal and constitutional committee was to look at the ASIO bill after the parliamentary joint committee had tabled its report, and that is what the legal and constitutional committee considered it would do. As a member of that committee, I recall those circumstances if perhaps not all of the dates that go with them. At that time, during the early part of this year, the Legal and Constitutional Legislation Committee was considering in the order of 10 other pieces of legislation, principally those dealing with security issues— `terrorism bills', as they are perhaps now colloquially called.

The Legal and Constitutional Legislation Committee considered that it would allow the Parliamentary Joint Committee on ASIO, ASIS and DSD to consider the issue of the new ASIO bill first, as is proper and appropriate. The first, practical, reason for this was the amount of work that was already confronting the Legal and Constitutional Legislation Committee. The second reason was that the joint committee was the appropriate place for that bill to go first for proper scrutiny and consideration. I thought the issue could be revisited at a later time, pending the outcome of the joint committee's examination of the ASIO bill. The Legal and Constitutional Legislation Committee would not ordinarily rework or go over the contents of another committee's report. That would be considered by many to be an unnecessary exercise that might generally pose a difficulty for some people. For example, it could cover territory that had already been covered, which would be a waste of calling witnesses and an expense and might also give rise to issues relating to changing circumstances or different reflections by witness to the particular committees. Therefore, it is usually sensible to have one committee examine and report. But in this instance a number of matters arose, some more practical and process orientated and some more legal or constitutionally based in relation to the overall issues, so there was some tension about whether or not the bill should be examined jointly. At the end of the day the committee made what I think was the best decision at the time, given the work pressures: that the parliamentary joint committee would examine the report.

The Parliamentary Joint Committee on ASIO, ASIS and DSD tabled its bipartisan report in June 2002. It made substantive recommendations designed to improve the operation of the bill, provide a better functioning bill and ensure that a balance was found between people's liberty and security. Those recommendations included:

The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended to include a provision giving the Attorney-General the power, by way of regulation, to nominate an authority that can issue a warrant under the Bill.

On the issue of the period of detention, it provided recommendation 3:

The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 be amended so that the maximum period of detention of a person is no more than 7 days (168 hours), and at the expiry of that period a person must be either charged or released.

The thrust of those amendments was, firstly, to make improvements to the ASIO bill in terms of its procedures, its operation and its effect on the community at large and, secondly, to try to resolve some of the more difficult elements of the bill to ensure that people's liberty was balanced against the security of this nation. There were 15 recommendations. As I understand it, the government's response to that could only be described as extraordinarily poor. As I have said, it was one of the most controversial pieces of legislation considered by this parliament in recent times, and one would have expected the government to deal with the report in a more adequate way than it did.

It seems to me that there are sound reasons for recommending that this bill go to the Senate Legal and Constitutional References Committee. Those sound reasons are also supported by the Senate Legal and Constitutional Legislation Committee's consideration of the legislation. Although the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 is the bill's proper title, which is a mouthful, I have been describing it, using shorthand, as the `ASIO bill'. The report of the Senate Legal and Constitutional Legislation Committee, at paragraph 1.38, said:

In the event that the Government accepts all the PJC's recommendations, the Committee recommends that the Bill, as amended, proceed without further review by this Committee. In the event that the recommendations are not adopted, the Committee reserves the right to revisit its consideration of this Bill.

It was clear—and, I think, instructive—that the conclusion of the report was, in effect, that this legislation requires further and better consideration if the government is not to provide an adequate and fulsome response to the parliamentary joint committee's recommendations and report; it leaves a hole that needs to be filled, an area which requires consideration.

These concerns are not insignificant. It is instructive to go to a number of the submissions that were provided both to the Legal and Constitutional Legislation Committee and to the Parliamentary Joint Committee on ASIO, ASIS and DSD. A number of people made, or wished to make, submissions to the Legal and Constitution Legislation Committee about the ASIO bill and, as was proper, we referred them to the parliamentary joint committee for further consideration. It was not a matter that we would then take evidence on and consider. One of those submissions argued that the bill falls into three areas: the process by which special warrants are sought and issued, the execution of the special warrants and offences with respect to those special warrants. Touching on some of those provisions is important to highlight the argument that I have put forward: that the second reading amendment is the best way to proceed with this bill. It is supported by the Senate Legal and Constitutional Legislation Committee report, the parliamentary joint committee's report and—really, by omission—the government's failure to respond fully to the parliamentary joint committee's report.

Touching on some of the issues, the main provisions of the bill—which were highlighted by Senator Kirk earlier but are worthy of touching on again to reinforce the argument that I have put this morning—include item 24, which inserts new division 3, which goes to questioning and the detention power. The way this would work is that the Director-General of Security would be able to seek a warrant from a federal magistrate or a legal member of the Administrative Appeals Tribunal that would require a person to appear before a prescribed authority to provide information or to produce documents or things. These reforms would allow ASIO, before a prescribed authority, to question people who were not themselves suspected of terrorist activity but who might have information that might be relevant to ASIO's investigation into politically motivated violence.

In Australia there are few examples of this mandatory duty to inform—that is, the power to compel disclosure. This generally occurs in response to subpoenas or summonses as part of court processes. So we find that in royal commissions, in powers exercised by ASIC—the Australian Securities and Investments Commission—or in something like the New South Wales ICAC. The duty to provide information may also arise in response to a request or a production notice as a statutory incidence of an executive power, like—and I am not sure all have experienced this—the Taxation Office or Customs may provide. Ordinarily, though, there are various ways to avoid an executive duty to provide information, and these might go to issues such as the relevance of the request or might involve use of the defence of reasonable excuse or self-incrimination. It usually comes with the right to legal representation in a court. What I have set out are really the ordinary processes—although sometimes they are not that ordinary—that would occur.

This bill seeks to introduce an unusual combination of powers in order to address the threat, or potential threat, of international terrorism in Australia. As the bill stands, it essentially gives the law enforcement function of questioning to an intelligence agency—ASIO—and gives the criminal justice function of detention to nonjudicial persons. It removes or permits the suspension of standard procedural guarantees as to the rights of an accused—privileges against self-incrimination, the right to legal representation. As I understand it, immunities are also dabbled with in this bill. These powers overlap with the ordinary criminal justice system. The bill creates, in effect, a system parallel—one with no safeguards in the bill that are visible to me—to the criminal justice system, which is a system that does have safeguards, a system that people are more familiar with and a system that provides a balance between security and the civil liberties of people.

In relation to the compulsion to answer questions, protection in the form of use or derivative use immunity, as I have said, seems to be lacking. In this bill there is a lack of balance between safety and liberty. That is principally where Labor differ with the government. There is a need for the Legal and Constitutional References Committee to examine that balance, to take the reference in the second reading amendment that Senator Faulkner has moved, to examine and hear submissions and to re-examine the ASIO bill in the broader context of both the legal implications and the constitutional issues that I have raised.

In my view, there is an absence of security in the bill. It may be possible to argue that preventive detention is inconsistent with the separation of powers. It would seem logical that if the federal parliament is to have the authority to make laws for administrative detention—and, indeed, preventive detention—it may be necessary to have some protections. Constitutional implications of the ASIO bill have been raised continually by Professor Williams and others, and these also require considered examination. It is not about trying to argue that there are needs to be addressed in the security legislation; it is about examining it to ensure that we have sound, good security legislation that is considered and well thought through.