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Monday, 21 October 2002
Page: 5462

Senator HARRIS (1:01 PM) —I rise to speak on the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002. Today we are debating a very serious bill which seeks to give ASIO, our domestic intelligence agency, unprecedented, unnecessary and unwanted powers. The bill strikes at the heart of freedom, democracy and civil liberties, and is an attack upon the fundamental natural rights and beliefs that our forefathers fought and died for. ASIO has a history of spying and prying on innocent Australian citizens whose crime was sometimes nothing more than expressing opinions contrary to those held by the political establishment of the day. Up until the 1970s, ASIO's countersubversion branch maintained lists of citizens who could be arrested and interned in camps in the event of war or other national emergencies. Plans to round up and imprison up to 10,000 political opponents in military camps continued until 1971.

In the past, ASIO is known to have maintained intensive surveillance and dirty tricks operations against perceived political dissidents. ASIO bugged offices, tapped phones and planted agents. Media proprietors and leading journalists also worked closely with ASIO, exchanging files, publishing articles based on ASIO dossiers, and fuelling ASIO inspired witch-hunts and frame-ups. Today ASIO is widely perceived to have thrown off its Cold War shackles. In a recent media interview Director-General of ASIO, Dennis Richardson, told a Canberra newspaper that ASIO is a `contemporary organisation meeting contemporary needs', but when we see the sort of legislation before us today we have to wonder exactly what those contemporary needs are.

For the first time in the history of our nation, ASIO is seeking the power to arrest suspects and to have them detained for 48 hours without legal counsel. Unlike state police and the Federal Police, ASIO is not a law enforcement body; it is primarily an intelligence-gathering agency. ASIO does not perform a law enforcement role or maintain a direct working relationship with the criminal justice system, yet in the name of the war on terror ASIO is now seeking the powers of a secret police force. These powers were not even necessary at the height of the Cold War. One of the most outlandish powers in this bill is that it will allow the Federal Police to detain a person for questioning on behalf of ASIO. The process will be effected via the provision of questioning warrants—warrants that ASIO has never before had the power to seek.

The bill allows access to legal counsel only after 48 hours. ASIO could effectively make a person disappear for two days. Under this legislation, ASIO will be able to question people who are not suspected of terrorist activity but who may have information that may be relevant to ASIO's investigations into politically motivated violence. This new provision is tantamount to a mandatory duty to inform. ASIO will have the power to compel disclosure of information from a mere suspect. Senators would be aware—

Senator Lightfoot —Mr Acting Deputy President, I rise on a point of order. I do apologise for interrupting the speaker, but I wonder whether you would be able to rule on this. It appears that the speaker is reading a speech and I wonder whether you would be able to clarify whether he is referring to copious notes.

The ACTING DEPUTY PRESIDENT (Senator Sandy Macdonald)—Senator Lightfoot, there is no point of order. He is referring to copious notes.

Senator HARRIS —Senators would also be aware that ASIO can seek various warrants to search premises, hack into a person's computer, bug a person's telephone conversation and keep people constantly under surveillance. These warrants would be issued by the Attorney-General. It is unknown how many warrants are issued each year. Indeed, the issuing of warrants is only vaguely referred to in ASIO's 2000-01 report to parliament. For instance, there is no public record of the number of telephone intercepts and warrants that are issued. Technically, the phone tapping is simple. The phone company types in the number and flicks the conversation to ASIO, who records or transcribes it. Laws that came into force in the early 1990s ensured that all telcos built this mechanism into their systems so they could respond easily and rapidly to information warrants. If ASIO has nothing to hide then it has nothing to fear, and details pertaining to warrants should be disclosed.

I note that the amended ASIO legislation makes provision for the organisation's unclassified report to include a statement about the total number of requests to issue questioning warrants. However, only the numerical totals are reported; the other details are not furnished. Once a questioning warrant is issued, a person must appear before an authorised authority and provide information or documents requested in relation to that warrant. The person will be deemed to have committed an offence if they fail to appear, give information or produce things associated with the warrant. The privilege of self-incrimination does not apply. In other words, the person is compelled to answer any questions put to them by ASIO.

In its submission to the parliamentary joint committee which investigated the bill, the Law Council of Australia argued that the abrogation of the right to remain silent and to legal representation was unacceptable. On this point the Law Council of Australia has said:

Any overturning of the right to silence by the imposition of compulsory questioning must be confined as narrowly as possible ... the Law Council does not consider the proposed test— namely whether or not the Minister is satisfied that there are `reasonable grounds' for believing that the issue of the warrant will substantially assist the collection of intelligence—to be acceptable.

Once a person is taken into detention, at an unknown location, they can only contact an approved lawyer and access to legal counsel may be delayed by up to 48 hours. While an allegation of terrorism, if proven, may certainly justify incarceration, it does not in itself justify detention, for any period of time, without legal counsel.

Let us summarise what we have so far here in this legislation. A person can actually be detained by the police on behalf of ASIO and questioned and they have no right to remain silent. A person can be held without any charges whatsoever, on a mere suspicion. There is no access to a lawyer for a period of 48 hours or, in other words, two days. The detainee cannot even make a phone call. A person could be held totally incommunicado. There is no provision in the legislation that specifies any time restriction on the questioning during that 48-hour period. It appears that questioning could continue for the full 48 hours. These are a flagrant abuse of civil liberties and a horrendous and frightening affront to the decent law-abiding citizens of the country. The mere tabling of this legislation is an imposition and it would be reprehensible if passed in its present form.

On the subject of detention I would like to draw the Senate's attention to the comments by the Law Institute of Victoria:

It is our view that rather than defending democracy, the Bill undermines fundamental human rights to the presumption of innocence and to be free from arbitrary detention contained within the International Covenant on Civil and Political Rights.

It is unconscionable that any person in our community could be subject to arbitrary detention. It is even more disturbing that this legislation could see children detained, without any ability to notify their family.

... ... ...

In addition, we emphasise that in respect of any detainee, any period of detention should at least be strictly time-limited. It is essential that any detainee be provided with the opportunity be able to contact family and seek legal advice unless a judge makes a determination to the contrary.

Anything less than these suggestions will see protections that are the hallmark of our civilised democratic society eroded.

I want to make some remarks now about ASIO and foreign intelligence agencies. Australian intelligence organisations are intricately linked with overseas counterparts through the UKUSA agreement, signed into existence shortly after World War II. The partners of the UKUSA agreement—that is, the USA, the UK, Canada, Australia and New Zealand—operate a surveillance network called Echelon. In July 2001, the European Parliament reported on this global system for the interception of private and commercial communications, and ASIO is among the five Australian intelligence organisations named in the European parliamentary report in Annex IV.

Members who were with the Joint Standing Committee on Treaties in 1999 will recall hearing evidence about the UKUSA agreement and the fact that this treaty forms a central plank of US and Australian involvement at the joint defence facility Pine Gap. Members of the committee will recall our own Australian parliamentarians could not even get a canteen tour of Pine Gap. I raise the point about Pine Gap because there have been recent demonstrations there. One Nation does not support unlawful assembly but we do support the right of people to bring to the attention of the Australian public the issues that they oppose.

The proposals in this bill present a significant departure from traditional legal arrangements. In normal circumstances, a person cannot be detained for more than a few hours unless they are charged with an offence. They must be allowed to communicate with a lawyer immediately, and they cannot be compelled to answer questions. Under this bill, ASIO could use various excuses to detain a person because they might have valuable information, because it suspects a person but lacks sufficient evidence to make a charge or simply because ASIO is not yet convinced the person is innocent.

In the last sitting, we saw several key terrorism bills pass through the Senate with the help of the opposition. Let me remind you of Senator Ray's comments in this chamber about the antiterrorism bills, including the Security Legislation Amendment (Terrorism) Bill 2002:

The way we must approach these matters is to look at them as if we were in government. We must strip everything away and assume for the moment that we are in government: what would we think was the most appropriate legislation then?

Increasingly, the electorates—that is, our constituents; the men and women of Australia—are asked not to know, but just to trust the government. We are being asked to increasingly grant powers to the government and the government's agencies based on the fact that the government is bringing them forward as legislation. We are being asked to accept the unknown content. Citizens of Australia must not become complacent and we, as parliamentarians, must not blindly accept what comes before us as legislation. World history is replete with facts about dictators and tyrants, and about terrorists who violate every rule of human decency. It is critical that, in responding to a terrorist threat, we hold fast to the rule of law. Secret detentions fail that test. Abolition of the right to remain silent fails that test. Detention without access to legal advice for 48 hours fails that test. On the scales of justice, we are simply losing the balance.

This drastic legislation could bypass the fundamental rights which are the hallmark of Australian justice and our common law heritage. We must not sacrifice our most fundamental principles, or we run the risk of losing our freedom. Public apprehension of impending violence is the terrorist's most valuable weapon. Apprehension can lead to personal fear, to changes in business or other practices which are unnecessary and damaging to economic or social life and, eventually, to government actions which may undermine our democratic institutions. To date, terrorists have not achieved the suppression of the individuality of Australians. We need to ensure, in this chamber, that we are not doing to the Australian people the one thing that terrorists have not been able to achieve.

During my speech I made a reference to a report from the European Parliament: Report on the existence of a global system for the interception of private and commercial communications (ECHELON interception system) 2001. In annex 4 of that report we find ASIO named as a foreign intelligence service that reports to the Minister for Foreign Affairs. I seek leave to table that document.

Leave granted.