Annette Ellis (Canberra, Australian Labor Party) Share this | Hansard source

I rise today to speak on the ASIO Legislation Amendment Bill 2006. This bill amends division 3 of the Australian Security Intelligence Organisation Act 1979 and the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, which deal with ASIO’s terrorism related questioning and detention powers. The bill makes a number of welcome improvements to the act. In addition there are a couple of worthwhile recommendations which have not been adopted and which form the basis of Labor’s amendments, which I will discuss a little later.

Labor welcomes the changes to clearly distinguish between ASIO warrants for questioning and warrants for questioning while in detention. The bill ensures that client-lawyer privilege is respected in cases involving questioning warrants, and in those cases it allows contact between a person being questioned and their lawyer at any time while they are being questioned by a prescribed authority. Labor also supports clarification of the time periods for questioning under each of the warrants.

Another positive change is that the bill establishes an explicit right of access to a state ombudsman or other relevant state bodies with jurisdiction to receive and investigate the conduct of state police officers. The bill also imposes an obligation on the prescribed authority to advise the person being questioned of this right. Labor believes that state bodies such as the ombudsman should be entitled to investigate state police officers and that people being questioned should be advised of their right to complain to relevant state bodies such as the ombudsman. Other provisions in the bill improve the questioning process. For example, the bill requires the prescribed authority to inform a person being questioned of the reason for the presence of each other person present at the time of questioning.

I will now move to the parts of the bill which are of concern to me and to Labor. To put these concerns into context it is important to note that this bill responds to recommendations made by the Parliamentary Joint Committee on ASIO, ASIS and DSD. That committee is now known as the Parliamentary Joint Committee on Intelligence and Security. The joint committee recently reviewed ASIO’s terrorism related questioning and detention powers, which are found in the Australian Security Intelligence Organisation Act 1979. Their report entitled ASIO’s questioning and detention powers: review of the operation, effectiveness and implications of division 3 of part III in the Australian Security Intelligence Organisation Act 1979 was tabled in the House of Representatives on 30 November 2005.

Whilst this bill adopted six recommendations by the joint committee, it adopted six other recommendations only in part and did not adopt a further seven recommendations. Labor is concerned that recommendation 10 of the joint committee is only ‘agreed in part’ by the government. Recommendation 10, part 1 was adopted, which states that ‘the supervisory role of the prescribed authority must be clearly expressed’ to the person being questioned. Recommendation 10, part 2 states that:

• ‘ASIO be required to provide a copy of the statement of facts and grounds on which the warrant was issued to the prescribed authority before questioning commences’.

The government has rejected this part of the recommendation. The government has argued that prescribed authorities have sufficient information to fulfil their role in supervising proceedings, because they are provided with a copy of the warrant.

Labor is concerned that failing to fully adopt recommendation 10 diminishes the safeguards in the detention regime. This is of great concern to me and, I am sure, to many people in my electorate of Canberra, many of whom have contacted me in relation to these issues. I and Labor agree with the joint committee’s view that access to this information will assist the prescribed authority to exercise their supervisory role when a person is being questioned. Accordingly, a copy of all the relevant documentation should be provided before questioning begins. The government’s response to the joint committee report has not provided any compelling or satisfactory reason for not adopting recommendation 10 in full.

Another major concern to me and my colleagues is the proposed 10-year sunset clause for division 3, part III of the ASIO Act. Division 3, part III can be summarised as follows. It allows ASIO to obtain a warrant from an issuing authority which allows adults who are not suspected of a terrorism offence but who may have information about terrorist activities to be questioned for extended periods. They can be detained if there are reasonable grounds for believing that they may alert someone involved in a terrorism offence, may not appear for questioning or may destroy or damage evidence. The statutory regime also applies to children aged between 16 and 18 years if they are suspected of involvement in a terrorism offence. Questioning takes place before a prescribed authority, who oversees the process. The regime is unprecedented in Australia and, arguably, in the common-law democracies with which Australia is often compared, such as the United Kingdom, Canada, New Zealand and the United States.

This bill proposes a 10-year sunset clause for division 3, part III, with a date of 2016. The joint committee recommended that the new sunset clause come into effect on 22 November 2011—that is, a five-year sunset clause, not a 10-year sunset clause. Many submissions to the joint committee argued against renewing the questioning and detention regime. They argued that the threat level to Australia does not justify the regime, that the existing powers of law enforcement agencies and existing criminal laws are sufficient and that the legislation is inconsistent with democratic rights.

Most agreed that, if division 3, part III is to be re-enacted, it must be sunsetted. A 10-year sunset clause is clearly too long. That is why Labor is moving an amendment to reduce the sunset clause to five years. Many of my constituents have contacted me with concerns about the ways in which civil and human rights in Australia have been threatened in recent years. I strongly believe that, whilst we need to protect our citizens from terrorism, we must also protect their human rights and our system of democracy. As my colleague the member for Brisbane said earlier today, Australia needs tough laws to deal with terrorism—there is no doubt about that. But just as important are 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. We must ensure that, in responding to terrorism, we do not undermine or destroy the very liberties that we are seeking to protect. Terry Higgins, Chief Justice of the ACT Supreme Court, said in October 2005:

Can we still claim to live in a democratic state if we do not have the most basic democratic rights? It is important to guard against the violation of civil liberties regardless of whether the challenger is a radical terrorist, or an unduly prescriptive piece of legislation.

Chief Justice Higgins was expressing his concerns at the Howard government’s proposed antiterrorism laws last year. The Howard government has shown that it is not very good at maintaining that important balance between having tough laws to protect our citizens from terrorism and, at the same time, protecting their civil rights and human rights. The Howard government’s behaviour over the last few years has shown an arrogance and a lack of consultation with state and territory governments and with the public. We must take a balanced approach to protection from terrorism and protection of civil and human rights, and that is why I will support Labor’s amendments to this bill.

Can I again refer to Justice Terry Higgins. I would like to further quote, if I may. He said in an article in the Canberra Times in October last year:

The argument that it is simply a matter of “extraordinary times call for extraordinary measures” is initially persuasive, but less compelling when subject to closer scrutiny. History has shown that, unfortunately, once taken away, rights don’t tend to hover in the stratosphere, waiting to be reactivated. There is the problem that measures that are introduced during times of national emergency have a nasty habit of outstaying their welcome.

I would like to conclude with a quote by Robert Maynard Hutchins:

The death of democracy is not likely to be an assassination from ambush. It will be a slow extinction from apathy, indifference, and undernourishment.

It is absolutely important; it is absolutely vital. Yes, we do need to have strong laws at a time like this, but the balance that has to be struck between the need for those laws and the need to uphold basic human rights and the freedom of our democracy is no less important. I very strongly support our foreshadowed amendments to this bill and I strongly suggest that the government pay due attention to them.

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