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Wednesday, 29 March 2006
Page: 5


Mr RUDDOCK (Attorney-General) (9:22 AM) —I move:

That this bill be now read a second time.

This bill amends division 3 of part III of the Australian Security Intelligence Organisation Act 1979, which deals with ASIO’s terrorism related questioning and detention powers.

These powers were introduced into parliament in 2002 as part of the government’s broad legislative package to counter the threat posed by terrorism.

After extensive parliamentary debate, the powers commenced in July 2003.

The regime permits ASIO to seek a warrant to question, and in limited circumstances detain, a person where there are reasonable grounds for believing that doing so will substantially assist the collection of intelligence in relation to a terrorism offence.

The powers are only used where other methods of gaining that intelligence would be ineffective.

Experience with the questioning regime has shown that it is yielding valuable information in an environment of stringent safeguards and accountability mechanisms, and is proving to be a useful tool in the fight against terrorism.

Parliament enacted ASIO’s questioning and detention powers subject to a review by January 2006 by what is now the Parliamentary Joint Committee on Intelligence and Security (PJC), and a sunset clause by which the powers would cease to operate after 22 July 2006.

During 2005, the PJC conducted a comprehensive review of the operation, effectiveness and implications of the powers.

I thank the committee for its detailed examination of the issues and welcome its report, which was tabled in November 2005.

I note that the PJC concluded that for the foreseeable future there are threats of possible terrorist attacks in Australia and that some people in Australia might be inclined or induced to participate in such activity.

I am pleased that the PJC recognised that the questioning regime has been useful in dealing with this situation, and that the powers have been used within the bounds of the law and that they have been administered in a professional way.

On this basis, the PJC recommended that the powers should continue beyond the sunset period, and made 19 recommendations aimed at improving the operation of the regime.

The government has given careful consideration to all the PJC’s recommendations, and is responding in a way that addresses the committee’s concerns as far as possible.

The government has agreed to clarify the regime and enhance rights and safeguards where doing so would not undermine the fundamental nature and purpose of the regime, nor impact unduly upon its operation.

I am pleased to now present a document which sets out the government’s response to each of the committee’s recommendations.


Ms Roxon —May we have a copy?


Mr RUDDOCK —Not immediately, but I will arrange a copy. Perhaps one of the attendants could collect it from my advisers.

The government has responded positively to the bulk of the recommendations.

In addition, we have sought to address concerns in alternative ways where the PJC’s recommendation is unable to be implemented in the terms proposed.

This bill implements the government’s response to the committee’s report.

A key feature of the bill is to amend the current sunset clause provision, which would otherwise cause the questioning and detention powers to cease on 22 July 2006.

The government accepts the PJC’s arguments about the need for ongoing review and a further sunset period, but considers that the 5½-year period recommended by the PJC is insufficient in the current environment.

We consider a period of 10 years to be more appropriate.

Recent experience with statutory reviews has demonstrated that they are resource intensive and do have an impact on operational priorities.

The 10-year period is consistent with state and territory government views about the time needed to properly make an assessment of the recently enacted antiterrorism package of legislation.

The longer period will also ensure that the legislation can be used over a period the government assesses there is likely to be a need for these powers.

Accordingly, the bill extends the sunset clause and the PJC review period by 10 years so that the PJC will be required to review the legislation by 22 January 2016 and the legislation will cease to have effect on 22 July 2016.

Of course the government will also continue to assess the operation of the legislation in light of practical experience and will review its effectiveness on an ongoing basis.

In responding to the PJC recommendations, the bill also seeks to improve the clarity and operation of the two types of warrant regime—warrants for questioning, and warrants for questioning and detention.

Schedule 1 of the bill renumbers the provisions, and more clearly sets out provisions dealing with only questioning from those that deal with questioning and detention.

The items in schedule 1 do not affect the substantive operation of the regime.

Schedule 2 of the bill contains amendments that will strengthen and clarify rights under the regime.

One of the key amendments involves making explicit rights of contact for the subject of a warrant.

The bill will insert a positive right of a subject to contact a lawyer under both types of warrant, whereas at present there is only an explicit right to do so under a warrant authorising detention.

This does not mean that the subject of a questioning-only warrant is not currently entitled to contact a lawyer—in fact they are able to do so; it is just that the right is not explicit in the legislation.

Consistent with the existing policy rationale and the PJC’s recommendation, ASIO will be able to challenge a lawyer being present during questioning on security grounds where the subject is detained in connection with a questioning-only warrant.

The bill will also insert a provision to make it clear that communications between a subject and their lawyer are not required to be made in a way that can be monitored in the case of questioning-only warrants (unless there is detention in connection with that warrant).

In addition, the ability of the subject’s lawyer to address the prescribed authority during breaks in questioning will be made clear in the legislation.

This enables a subject to raise any matter with the prescribed authority through their lawyer.

The bill will also clarify and better facilitate the ability of subjects of both kinds of warrants to make complaints, particularly in the questioning-only context, and to a wider range of complaints bodies.

As part of this package of amendments, the secrecy provisions will be amended to cater for disclosures to state and territory complaints bodies.

The secrecy provisions will also be amended to require the prescribed authority, the director-general, and the Attorney-General to take into account certain issues in deciding whether to permit disclosures.

These issues are the person’s family and employment interests, the public interest and the risk to security if the disclosure were made.

The bill will make other changes to enhance the rights of the subject.

These include requiring the prescribed authority to more clearly explain his or her role, so that the subject is aware of the independent supervisory role of the prescribed authority in the proceedings.

The bill will also provide for a person to have a statutory right to apply for financial assistance for reasonable legal and related costs arising from the questioning proceedings.

These measures, combined with some other changes in response to the PJC and other minor corrective changes, will clarify and strengthen the effectiveness of ASIO’s questioning and detention regime.

At the same time, the measures contained in the bill maintain an appropriate balance with civil liberties by enhancing safeguards and conferring more explicit rights on persons questioned or detained under the regime.

The questioning and detention regime needs to operate effectively if ASIO is to continue to have the best suite of tools at its disposal for working together with other agencies to prevent a terrorism attack in Australia.

For these reasons, I commend the bill to the House and I table the explanatory memorandum.

Debate (on motion by Ms Roxon) adjourned.