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Thursday, 5 December 2002
Page: 7338

Senator KIRK (6:43 PM) —Today I am pleased to speak on the report of the Senate Legal and Constitutional References Committee's inquiry into the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002. As other speakers have said, the bill was referred by the Senate to the committee on 21 October this year. In the short time that the committee had to investigate this bill, it received 435 submissions from the public and interested organisations and held public hearings in Canberra, Melbourne and Sydney.

As I said in my speech in the second reading debate, the proposed bill is one of the most controversial pieces of legislation to be considered by this parliament in recent times. Since the September 11 attacks in New York and Washington and, more recently, the tragic October 12 Bali bombing, it has become necessary to revisit our laws relating to intelligence and terrorism. It cannot be questioned that Australia needs a national legislative response to combat terrorist activity. However, as I said in my speech in the second reading debate, new antiterrorist measures must strike an appropriate balance between, on the one hand, national defence and security and, on the other hand, civil liberties and human rights.

As parliamentarians, we must always perform balancing acts with regard to difficult legislation such as this bill. In my view, the recommendations of the committee in its report, if accepted by the parliament, will ensure that the balance is right in this case. Generally speaking, the submissions the committee received recognised the heightened risk of terrorism that now threatens our country, but urged parliament not to unnecessarily sacrifice civil liberties in the process of countering the new terrorist threats to our nation. The submissions recognised that ASIO needs increased powers of intelligence gathering in this new climate, but argued that the manner in which this bill seeks to achieve that aim is flawed.

The committee recognises the need to confer on ASIO additional powers to conduct compulsory questioning of non-suspects for the purpose of intelligence gathering in relation to actual or potential terrorist attacks. However, to achieve this goal it is not necessary to establish an unprecedented detention regime for non-suspects. The majority of the committee concluded that the intelligence gathering powers of ASIO should be enhanced through a compulsory questioning regime that has strong safeguards. The committee accepted that the Director-General of Security be required to seek the Attorney-General's consent to apply for a warrant for questioning. In so doing, the Director-General of Security must satisfy the Attorney-General about a number of matters, including that the warrant will substantially assist in the collection of intelligence in relation to a terrorism offence.

Under the proposed legislation, chapter 3 court judges and magistrates are empowered as issuing authorities to issue these warrants. The committee heard a number of submissions from eminent constitutional lawyers that raised serious concerns as to the constitutionality of using chapter 3 court judges in this way. Recommendation 2 of the committee's report addresses this matter. It recommends that the issuing authority be chosen from a panel of retired federal or state court judges with 10 years service on a superior court, to be appointed by the Attorney-General for a three-year period. The use of retired judges, as opposed to serving members of the federal judiciary, will remove any constitutional obstacles and ensure public confidence in the warrant process.

The committee also heard concerns about the person who would perform the role of the prescribed authority, before whom the questioning will take place under the bill. The committee heard various submissions arguing that the appointment of AAT members, as is proposed, would not allow for sufficient independence from the executive branch of government and this would potentially damage public confidence in the process. In response to this, recommendation 1 of the committee is that the role of the prescribed authority, like that of the issuing authority, be performed by retired judges to ensure that the questioning is overseen by an impartial authority.

The committee also received numerous submissions that objected strongly to the compulsory detention and isolation of people who have committed no crime or terrorist act. It is difficult to discern a clear purpose for the proposed detention regime. It seems to be a muddle of two objectives: firstly, the detention of people who may have knowledge of a planned terrorist offence; and secondly, detention as a means of coercing answers to questions in relation to such offences. Recommendation 4 of the committee's report recommends that the time limits for questioning under the Crimes Act, which provides for a maximum of 12 hours, should be the model for such limits under a compulsory questioning regime by ASIO, and that these should be included expressly in the legislation.

Recommendations 6 and 7 of the report, if adopted, would allow for a person to be questioned under a second warrant for another maximum 12-hour period, but only if new information about an imminent terrorist attack were received. At the expiration of the second warrant, the person cannot be questioned again for the next seven days. In recommendation 8, a majority of the committee recommended that when the questioning of a person has concluded, that person should be free to leave. ASIO should have a compulsory questioning regime with strong safeguards, but not an infinite detention regime, as is proposed under this bill.

The bill as it currently stands creates a system for legal representation based upon the approval of legal representatives as approved lawyers. Under the bill, these lawyers will have a limited role in the questioning process and, in some cases, those being questioned may be prevented from having a lawyer present for up to 48 hours. The majority of the committee, in recommendation 11 of the report, concluded that the system of approved lawyers should not proceed. The committee concluded, in recommendations 9, 10, and 19, that individuals should have the right to the lawyer of their choice. They should have the right to private consultation during questioning, it should be ensured that legal professional privilege not be affected and, importantly, that those individuals have access to legal aid funding as appropriate.

In recognition that certain lawyers may pose a security risk, the majority of the committee recommended in recommendations 11 and 12 of the report that, where the prescribed authority is satisfied on application by ASIO that the lawyer represents a threat to public safety, a person could be denied their lawyer of choice. However, they would be permitted to choose another lawyer. The bill, as drafted, applies to children between the ages of 14 and 18 years, where they are suspected of a terrorist offence. A majority of the committee considered that to make children subject to this legislation only where they are suspects is both inconsistent with the objectives of legislation and inappropriate.

Recommendation 27 of the committee's report is that the questioning regime under the bill not apply to anyone under the age of 18 years. It is more appropriate that, if a person between the ages of 14 and 18 is suspected of involvement in a terrorist offence, they be arrested and interviewed and dealt with by the police, with the full protections offered to children under the criminal law. The committee emphasised the need for a statement of procedures to be developed to regulate such matters as the place and conditions for questioning, the security arrangements, the conduct of interviews, the responsibilities of agencies and, importantly, the entitlements of a person being interviewed, including access to translators, meals, rest periods and privacy. The committee considered that the importance of these issues requires the statement of procedures to be included in regulations to the act and that no warrant be issued until such regulations come into force.

Under the current bill a person can be detained on a belief that they have information relating to a terrorist offence. It is an offence under the proposed legislation to not give such information. In the circumstances where a person does not have the information that ASIO seeks, the individual has the evidentiary burden to show that they do not have that information. The majority of the committee recommends in recommendation 15 that this reverse burden of proof be removed. Finally, in recommendation 26, the committee recommends that the bill include a sunset clause of three years.

Following the careful deliberations of the committee, the report has made a number of recommendations for changes to the bill that will improve it dramatically if they are accepted by the parliament. The substitution of a questioning regime instead of a detention regime, its non-application to children, the provision for legal representation and the use of retired judges to issue the warrants and oversee the questioning by ASIO are improvements that will ensure public confidence in this necessary antiterrorism measure. (Time expired)