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Wednesday, 25 June 2003
Page: 12615

Senator FAULKNER (Leader of the Opposition in the Senate) (9:00 PM) —This is an important amendment, and of course it is an important amendment to an important provision. Division 3 will be sunsetted. These controversial provisions will cease to become law three years after the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 [No. 2] receives royal assent. The opposition has suggested that, in assessing whether any or all of those provisions should become law again, we need to have a very effective review of how those provisions have worked. Obviously it is appropriate to do that before the provisions cease to exist. That is totally logical. This amendment of course means that the review to be conducted by the parliamentary joint committee on intelligence services will start earlier to enable those processes to occur.

Originally, the provision in the bill proposed to hold the review three years after proclamation—in other words, after the provisions ceased to be law. If that problem had not been picked up, the review would have happened after the bill had ceased to have effect. So, sloppy drafting would have left us in the untenable situation of ASIO having its new powers for three years and then those powers ceasing to exist before they were reviewed. It is a sensible amendment, it is an obvious amendment and it is one that needed to be made. This review is going to take place in a couple of years time.

For the opposition's part, it has been reviewing this legislation now from the time this bill was introduced some 15 months ago. I think it is important to remember—and this is why this review is so important—that this bill started as a blueprint for the deprivation of a person's liberty and legal rights. This bill, in my view, started as something that George Orwell would have written home about. The opposition has dragged the government from that draconian model to a bill that is far more measured; a bill that is loaded up with safeguards; a bill that is light-years away from the one first introduced into this parliament. When you think about some of those changes, it is quite dramatic.

This is what the review will have to address. It will now address the fact that we have a right to legal representation of choice; the fact that a judge or retired judge will be present as the prescribed authority for the whole time that questioning takes place under these provisions; the fact that there will be protocols governing these procedures and those protocols will be tabled in parliament; and the fact that, while 16- and 17-year-olds as well as adults will be subject to the provisions of the legislation, those 16- and 17-year-olds must be suspects. When the bill was first introduced the provisions would have applied to anyone at all under the age of 18 and, as you know, to strip searches for any child over the age of 10 years.

The review will also have to look at the issue of full legal rights for appeal to the courts, which have now been provided. It will look at the new amendments in relation to the Inspector-General of Intelligence and Security and the new obligations on the inspector-general to review any additional warrant that might be granted. There is no doubt that the review itself, along with the reporting mechanisms in relation to the number of requests for warrants and the number of warrants granted—the whole raft of statistical information that will be made available in the public arena—is obviously an important safeguard and something that is going to dramatically assist the conduct of this review.

In the view of the opposition, it remains a very important safeguard indeed and it is essential that it take place before these provisions cease to have effect in law three years after royal assent. I never resile from the fact that in relation to this legislation, as far as the opposition is concerned, this has been a balancing act. The government had the weights loaded on the draconian security measures predicated on the removal of legal rights. On the other side of the balance is the important issue of ensuring that those who are being questioned under this regime are appropriately protected in terms of their rights and liberties.

It has been very difficult to get that balance right. In making that assessment, of course you have to take into account the new security environment. I suppose this is something that will exercise the minds of those who are conducting the review. We all know that terrorism is now a serious global risk. We know what happened on 11 September 2001. We know what happened on 12 October 2002. We know what terrorism in our region means as many Australians lost their lives in a dreadful and barbarous act in Bali. We have to be very clear about the challenge that we face in legislation like this.

Terrorists choose environments where the innocent gather. They choose to attack people on public transport, in buildings, on planes, in nightclubs and perhaps in sporting grounds. They target innocents. Terrorists seek out the vulnerable. While terrorists seek targets and prepare for acts of extreme violence, of course we in the parliament have a responsibility to ensure that our security and law enforcement services have appropriate powers to gather intelligence on those sorts of activities so terrorists can be thwarted. That is what is at the heart of this legislation—intelligence gathering in an increasingly dangerous environment.

Everyone knows that our heavy involvement in the Iraq war as part of the coalition of the willing has meant that the Australian government has had to increase security precautions around the country. Anyone who walks into this building any day of the week knows that that is the case. The Labor Party have always said that we do think that it is appropriate to provide enhanced powers to ASIO. We do think that it is appropriate that ASIO be given the tools to deal with the enhanced security environment, but we also say that the challenges for this parliament, which are certainly challenges that this opposition treats very seriously, are to ensure that with those enhanced powers go more than adequate and appropriate safeguards. That is the balance that we have tried to achieve in relation to this legislation.

Labor have stacked this bill with safeguards so that the parliament does not blow away the legal rights of Australians when we look at enhancing the powers of ASIO. Unfortunately, when this bill was originally introduced so many civil liberties, so many hard-won rights, so many freedoms that Australians take for granted would have been affected in this legislation. The Labor Party, my colleagues in the federal parliamentary Labor Party, have worked tirelessly, even as late as these last few days, to improve this legislation and to ensure that we are able to deal with the issue of rolling warrants that has recently been raised. That is something that, with the benefit of the report from IGIS, obviously the review will look at.

I am absolutely delighted that we no longer have to worry about rolling warrants. I am absolutely delighted because while the Labor Party are not opposed to a person being the subject of more than one warrant we are against the grounds of that warrant being reused by ASIO to justify custody for longer than seven days. If ever an additional warrant is to be issued, absolutely appropriate and strong safeguards must be in place. They are the principles that have driven the Labor Party in relation to this and that is why I am delighted that we no longer have a situation to face where there might have been a capacity for indefinite detention. After all, when this bill was first introduced, there was an absolute risk that a person could have been detained indefinitely incommunicado. That is the sort of legislation that this parliament should never pass.

We now have a situation where, apart from all the safeguards I have mentioned, if there is an additional warrant then that warrant will have to be about new and materially different matter from that for the previous warrant, and that is very important. As senators know, it is also essential that there are all those other hurdles, in relation to the director-general, the minister, the issuing authority, the prescribed authority, the legal representation and the Inspector-General of Intelligence and Security, which are essential safeguards. This committee of the Senate should be very proud that it has been able to change this bill in such a positive way.