Arch Bevis (Brisbane, Australian Labor Party, Shadow Minister for Aviation and Transport Security) Share this | Hansard source

The ASIO Legislation Amendment Bill 2006 joins a long and growing raft of legislation designed to deal with the current threats presented to Australia, particularly by non-state terrorism. It is true that Australia needs tough laws to deal with terrorism but, just as importantly, we need well-balanced laws that target the terrorists, not innocent citizens. We need strong safeguards to protect the civil and human rights that are fundamental to our freedoms. It is incumbent on us as legislators to ensure that, in responding to terrorism, we do not undermine or destroy the very liberties we are seeking to protect.

I made similar comments in my opening remarks on the Anti-Terrorism Bill (No. 2) 2005, the major piece of legislation at the end of last year flowing from the COAG meeting. It is worth repeating those sentiments whenever legislation of this type is being considered because this is very much about getting the balance right in a free society. It is about ensuring the safety and liberty of the people of Australia but doing it in a way that does not undermine or jeopardise the fundamental freedoms which we hold dear and which generations of Australians have fought to preserve. Unfortunately the Howard government’s track record in getting that balance right is not good. It seems that the government fail to understand that we can have security without sacrificing our liberty. This bill, in fact, remedies some failings in the existing legislation and is based on the work of the parliamentary committee.

Before I turn directly to the detail of that I want to take the opportunity to put this into some historical context because it does, as I commented, join a long and growing raft of legislation in this field. Last year we saw the unedifying spectacle of the government pressing the premiers and the chief ministers of the states and territories to adopt a framework of legislation that most Australians would regard as repugnant. It is a matter of history that, as a result of some negotiations in COAG, some pressure from the Labor side of parliament and, to be fair, some pressure from the Liberal backbench, there were substantial changes made to the preferred legislation of the Prime Minister and the Attorney-General. It is well that those changes were made because their preferred legislation—the desired approach of our Prime Minister and Attorney-General—effectively authorised administrative detention. By that I mean that it empowered politicians and public servants to decide who gets jailed and who gets detained. In Australia we do not subscribe to those views. Unfortunately we have a Prime Minister who does and who sought to establish a law that would have provided unprecedented powers for bureaucrats to decide who gets taken off the street and who gets locked up and to lock them up in secrecy with few rights in the process.

We need to ensure that these sorts of powers to detain are always exercised with judicial oversight. It was one of the preconditions Labor spelled out well before even the COAG meeting occurred last year. It was one of the principles we held to last year throughout the debate surrounding the antiterrorism legislation. It is a fundamental tenet of our system of government that the detention of Australian citizens is a matter for judicial determination, not for politicians sitting in this place and certainly not for bureaucrats. Sadly, that was not the preferred view of the Prime Minister.

There was one other aspect of the legislation that was passed last year which drew sharp criticism from our side of the parliament and from many commentators in the community and which, sadly, the government still holds to. That is the view that these extraordinary powers and laws should apply for a period of 10 years—that the sunset clause should be a 10-year period. The whole concept of sunset clauses is to restrict laws to a comparatively small time frame, after which the parliament can renew them, alter them or decide that they are no longer appropriate. A 10-year period is not a sunset clause. Let us be frank about this: a 10-year period is a political lifetime. There are many people who transit through this parliament in well under 10 years. In fact, the last time I received advice on this I was told that the average term of a member of the House of Representatives is seven years. The government is trying to set a sunset clause that is actually longer than the average term of a member of parliament and is somehow calling that a short-term sunset clause.

It also defies the clear will of the parliament on these matters in the past. The government got its way last October and November in establishing a 10-year sunset clause and I suspect, in spite of our opposition, it is likely to get its way this time as well, given that it now has control of the Senate. But when the Liberal and National parties did not have control of the Senate, and when Australia had to deal with the immediate aftermath of September 11 and the terrorist threat we confronted, the parliament adopted a sunset clause of three years. It was not 10 but three. I will return to that matter later in my address because I think it is particularly important, when we empower agencies to do things that are not normal in our society, to impose a realistic time frame for those powers to end and for the parliament to be obliged to reconsider them.

There is one other failing that I think it is important to note at the outset that the government has still not remedied, and that is its failure to expand the resources available to the Inspector-General of Intelligence and Security. The Office of the Inspector-General of Intelligence and Security is very important in the structure of our intelligence community. It provides an oversight and an overview to guarantee some transparency to ensure the agencies that are involved in security and act largely in a secret manner—and of necessity must continue to act largely in a secret manner—are not able to act in a way that the parliament has not approved or that would be outside the expectations of the Australian people. The Inspector-General’s office fulfils that role. It is the office through which complaints are thoroughly investigated. Indeed, the Inspector-General has the capacity to initiate investigations of his own volition. That is very important. I think the Australian public can take some comfort from the independence of the office and the role that it performs.

However, we cannot take comfort from the fact that, whilst the size of our secret intelligence agencies have doubled, the budget for IGIS—the Inspector-General of Intelligence and Security—has virtually remained static. There needs to be a significant increase in the resources available to the Inspector-General’s office simply to deal with the expanded number of cases, the expanded number of officers in the intelligence community and, inevitably with that of course, the expanded number of questions, issues and complaints that arise. The government has not done that. That diminishes the balance in the system and it also opens up the government and, sadly, the actual security agencies to questions of doubt and criticism from people in the community. We all in this place who are involved in these debates field complaints from time to time from constituents and folk around the country who think that our intelligence agencies may be doing the wrong thing. It is not healthy for the public to not have confidence in their intelligence agencies in these matters. One of the principal vehicles that I think builds that confidence is the Office of the Inspector-General of Intelligence and Security. The government should not allow the intelligence services to have their operations questioned in the minds of many in our community by failing to resource the Inspector-General so that he can properly supervise what goes on in those intelligence services. We just had a very big-spending budget. I would like to think that the Attorney-General could find some funds to significantly improve the situation of the Inspector-General.

There is one other matter that I want to refer to in the historical context, because it is an important issue, and that is what I regard as the mismanagement of the sedition laws. Last year’s bill included new sedition laws. We all in this place know that they are faulty. The Attorney-General knows that they are faulty. He knows that they are not the laws that we should have. That is why the Attorney-General has announced a review of them. Strangely, the Attorney-General announced he was reviewing those laws before the parliament had even adopted them. Everyone in this parliament knows that they are faulty. It was a foolhardy approach that the government adopted—using its numbers to force through laws that we know are not right. The sooner the Attorney-General is able to bring a bill into this parliament to improve those sedition laws and the sooner the review is completed and hopefully published, the sooner public confidence in these matters will be restored.

This bill, however, does fix some of the problems that exist with the current act. The bill deals with ASIO terrorism related questioning and detention powers. It provides clarity for questioning warrants and also for warrants for questioning of those people who are held under detention. As I mentioned, it extends the sunset clause for 10 years. These laws will be in place under these proposals until 22 January 2016. Schedule 1 of the bill renumbers the provisions of the act and is straightforward. Schedule 2 provides certain rights for those people being questioned and/or detained and questioned. Those rights clarify the maximum length of detention and how long a person may be questioned for and provide some clarification on the involvement of lawyers.

The bill includes a number of changes that adopt many of the recommendations of the Parliamentary Joint Committee on Intelligence and Security. I pause to say that I think that is an extremely important committee in the life of this parliament. The Labor Party has always regarded that committee as one of the important and serious committees throughout the parliamentary structure and it is no accident that the Labor Party representation on that committee includes some of our most respected and senior members of the parliament. They are people who have, in a number of cases, been former senior ministers: Senator Robert Ray, a former Minister for Defence, amongst other portfolios; the Hon. Duncan Kerr, a former Minister for Justice; Senator John Faulkner, a former Minister for Defence Science and Personnel; and my good friend and colleague Anthony Byrne, a highly regarded and well-respected member of the House of Representatives. The Labor Party representatives on that committee are senior people. We take these issues very seriously and we think it is important that their advice and their views should be carefully examined.

In this bill the government adopts a number of recommendations of that committee. Unfortunately, it does not adopt two recommendations in particular that Labor regards as important and which will be the subject of amendments I will be moving during the consideration in detail stage. Labor welcomes the changes to clearly distinguish between ASIO warrants for questioning and those for questioning whilst in detention. We welcome a subject’s access to lawyers and to the Inspector-General of Intelligence and Security. This bill provides greater certainty and clarity in the operation of the act, and for that we are grateful. It ensures that client-lawyer privilege is respected in those cases involving questioning warrants and in such cases it enables contacts between a subject and their lawyer at any time while the subject is before a prescribed authority for questioning. It also clarifies the time periods for questioning under each of the warrants. The bill establishes an explicit right of access to the state ombudsman or other relevant state bodies with jurisdiction to receive and investigate complaints about the conduct of state police officers. That is a sensible additional provision. It also imposes an obligation on the prescribed authority to advise the subject of their rights.

All of these are sensible improvements in the legislation. Many would ask the question why they were not there in the first place, but they are very appropriate and welcome improvements to the legislation. It is proper that state bodies such as an ombudsman be entitled to investigate state police officers and matters associated with these warrants. It is more than reasonable that the prescribed authority advise the subject of a warrant of their rights to complain to a relevant state body.

Other provisions in the bill improve the questioning process—for example, by requiring the prescribed authority to inform the subject of the reason for the presence of each other person who is present at any time during questioning. You can well imagine the circumstances of a person who as the subject of these warrants is taken away for questioning—taken to a strange but secure place with physical circumstances surrounding them which are unfamiliar to them and people they do not know in the room for reasons they do not know. This does provide some degree of information to those subjects so that they can at least know who is in the room and what their role is. Labor, however, is very concerned that the government has not agreed to committee recommendations Nos 10 and 19 and, as I said, I will be moving amendments dealing with both of those when we deal with them in the consideration in detail stage.

Items 5 and 6 of schedule 2 of the bill include amendments that ensure both questioning warrants and warrants for questioning and detention permit the person to contact a single lawyer of their choice at any time they are appearing for questioning or are in detention. That is a useful and important provision to enable the subject of a warrant to obtain fair and proper legal advice and representation. I understand there may from time to time be questions about the appropriateness of individual lawyers and concerns about those lawyers somehow in turn being a security threat. That is dealt with elsewhere. Those provisions that I just mentioned accord with the joint standing committee’s recommendation 4:

• a person who is the subject of a questioning-only warrant have a statutory right to consult a lawyer of choice …

Item 13 of schedule 2 provides that if a person who is appearing for questioning before a prescribed authority under a questioning warrant indicates that they want to make a complaint to the Inspector-General of Intelligence and Security or to the Commonwealth Ombudsman then the prescribed authority can defer the questioning and the person must be given facilities for making the complaint. This is an important safeguard. This gives effect to recommendation 11 of the joint standing committee:

• a subject of a questioning-only warrant have a clear right of access to the IGIS or the Ombudsman and be provided with reasonable facilities to do so …

Item 14 provides for a person who is detained under a detention warrant to make a complaint to a complaints agency of a police service of a state or a territory, and I have already commented on that. I would, however, seek from the Attorney-General some clarification about whether the same rights apply in respect of the soon-to-be-established Australian Commission for Law Enforcement Integrity. He may be able to shed some light on that in his response to the second reading debate on the bill.

Item 24, schedule 2 enables a person’s lawyer to address the prescribed authority during breaks in questioning. Recommendation 5 of the joint standing committee was that the act be amended so that individuals could make representations through their lawyers to the prescribed authority. It is not clear how item 24 that is before us at the moment reflects that joint standing committee recommendation, as the bill appears to permit representations to be made only during procedural time, not during actual questioning time. Again, I invite the Attorney-General to clarify that in his summing up of the second reading debate. Whilst these are improvements to the legislation, the government has not gone far enough.

Let me return to the question of the 10-year sunset clause. As I commented before, 10 years is by no-one’s reasonable definition a sunset clause. Even in the wildest expectations of the Prime Minister and the Attorney-General, it is highly unlikely that either of them will be standing at the dispatch box dealing with the sunset clause in 10 years time—a highly improbable event. Ten years is absurd, frankly, and there is nobody in this debate who actually believes that a 10-year sunset clause is sensible. The government do not want a sunset clause at all, so they put in place a ridiculous period of time.

As I said earlier, the parliament, when the Liberal and National parties did not have unfettered power in the Senate, adopted a three-year sunset clause. The United Kingdom, which has had to face regular, genuine threats of terrorism on its soil—not just since September 11, 2001 but for decades, going back to the days of IRA bombings—has in place similar legislation with sweeping powers, and it operates with a one-year sunset clause. That is 12 months, not 10 years. In the United Kingdom powers of the kind that are in this act that we are amending have to be approved every year by the parliament. That is the standard that a genuine democratic parliament imposes on these sorts of powers: the parliament has to renew every year these extraordinary powers.

When we as a parliament considered it in 2002 we adopted a three-year time frame. I think that three years is not unreasonable. Given the fact that the government has adopted a 10-year approach, the parliamentary committee last year, and again this year, recommended five years. I think the parliamentary committee has probably decided that, whilst three years might have been a good thing in the past, given the government has adopted a 10-year time frame there is not much point in arguing for three years, but five years is at least somewhere along the road.

Five years, I have to say, is at the upper end of any sunset clause ever adopted by this parliament, no matter what area of law we are talking about—and way beyond the one year that the United Kingdom parliament adopted for these sorts of laws. But, no, the committee’s recommendation of five years has been rejected and the government holds firm to this ludicrous 10-year sunset clause. I will be moving amendments to give the parliament the opportunity to adopt the committee’s recommendation of what amounts to effectively a five-year sunset clause.

When the Liberal and National parties were in opposition they seem to have had a different view about sunset clauses. I have a few examples here. There is a much longer list, but it is worth recounting what they did when they were in opposition. For example, when they were dealing with a sports drug agency bill David Jull, who was then a shadow minister and is now the chair of this joint committee, proposed an amendment for a three-year sunset clause. That was a sunset clause on sports drugs legislation, nowhere near as sensitive an issue as anything we are dealing with here. But, at the time that was before the parliament, David Jull as a shadow minister proposed a three-year sunset clause. When data matching in our tax bill was proposed, Andrew Peacock, whom some of us will remember, proposed that that should have a two-year sunset clause. When copyright amendments were before the parliament, Andrew Peacock again proposed a two-year sunset clause.

A couple of years later, when there was a second data-matching bill dealing with taxation, David Connolly, who was then the spokesperson for the Liberal and National parties, proposed a one-year sunset clause. There were some sensitivities about people’s civil liberties with data matching. That is why the then opposition, the Liberal and National parties, thought that the government should not be able to just do this data matching whenever they felt like it. They wanted a one-year restriction on it. Compare that with the standard they apply today as a government on sensitive matters balancing security and civil liberties.

We recall the Training Guarantee Bill from 1993, which the Liberal and National parties did not like at all. Kevin Andrews, now the Minister for Employment and Workplace Relations, then proposed a six-month sunset clause. This is the same minister who is out there gladly kicking workers of Australia to death under his euphemistically, strangely titled Work Choices bill. When migration legislation was before this parliament in 1994 Philip Ruddock, the present Attorney-General, proposed a three-year sunset clause. The last example I will give is the superannuation bill of 1995, where David Connolly proposed a two-year sunset clause.

You could not find a bill that this parliament has enacted where there has been a 10-year sunset clause, other than these security bills being pushed through by this government using the brute force of their numbers in the Senate. It is wrong. Every member in this parliament knows that it is out of kilter with the standard this parliament has adopted on every other occasion that sunset clauses have been determined, yet the government are determined to bludgeon it through the parliament with the force of their numbers in the Senate. I would urge government members to reconsider their approach to this important issue.

The second important issue, which unfortunately the government has not dealt with in this bill, is the committee’s recommendation No. 10, which requires ASIO to provide a copy of the statement of facts and grounds on which the warrant was issued to the prescribed authority. That means that the prescribed authority should have available the full details of the facts and grounds on which the warrant was issued. How else can the prescribed authority properly discharge his or her role in supervising the questioning that is under way? If you have no idea why a person is being questioned, how can you possibly determine whether or not the questioning and the process that you are seeing in front of you are fair and reasonable, whether they are right or wrong or whether or not they are lawful? The simple answer is that you cannot. Without that information, the prescribed authority is effectively blinkered.

I hark back to the government’s approach to this last year and to my opening comments. Remember the preferred model that the Prime Minister wanted. The Prime Minister tried to force upon the premiers, the chief ministers and this parliament a set of laws in which politicians and bureaucrats—not a judge or a magistrate—could themselves decide who would be taken off the streets and locked up for a while without being able to tell their partner, their wife, their children or their employer that they had been locked up and taken off the streets. That is what John Howard wanted to do last year. The only thing that stopped him was the outcry from people throughout the country—an outcry that was facilitated by the decision of Jon Stanhope, the Australian Capital Territory Chief Minister, to make public the Prime Minister’s draft legislation.

Against that background, we now have a choice of allowing the prescribed authority to know the grounds and reasons on which a warrant is issued. The Howard government does not want the prescribed authority to have that information. The prescribed authority is a judicial officer appointed by this government. We are not talking about someone they do not trust; we are talking about a magistrate or a judge that this government has selected for the purpose. Why on earth should that person not have the information about the grounds on which the warrant is issued? The simple fact is that there is no justification for that, unless of course you have a latent desire to return to the process that John Howard wanted last year: restrict the judicial oversight and give maximum power to politicians and bureaucrats to decide who gets locked up and how they are dealt with. That was unacceptable to the parliament last year, it was unacceptable to the premiers and the chief ministers and it is unacceptable to Australians. I will be moving an amendment to deal with that.

I make it clear here today—and I will mention this again when we deal with it in detail—that, if our amendments fail, a Labor government will amend this law after the next election to ensure those rights for all Australians. Labor will amend this law to ensure a realistic sunset clause. When we deal with this bill in detail, I will be very pleased to move those amendments on behalf of the Labor Party and to make that commitment.

See this speech in context