Arch Bevis (Brisbane, Australian Labor Party, Shadow Minister for Aviation and Transport Security) Share this | Link to 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.

Kym Richardson (Kingston, Liberal Party) Share this | Link to this | Hansard source

I rise today in support of the ASIO Legislation Amendment Bill 2006, which seeks to amend the Australian Security Intelligence Organisation Act 1979. One of the key amendments in this bill relates to the current sunset clause. In the absence of this amendment, the current questioning and detention powers contained in division 3 of the existing act would cease on 23 July 2006. This amendment bill seeks to extend by 10 years the existing sunset clause provision and prior review by the Parliamentary Joint Committee on Intelligence and Security, ensuring that the sunset clause would not come into effect until 22 July 2016 and requiring prior review by the parliamentary joint committee by 22 January 2016.

Experience over the past decade has shown that the current questioning regime has proved exceptionally valuable in obtaining important and relevant information about this government’s fight against terrorism. The safety and wellbeing of the members in the gallery, our schoolchildren who are looking down upon us and all Australians are paramount. There are exceptionally stringent safeguards to ensure that the personal rights and liberties of those being questioned and/or detained are protected and that those personnel involved in the process are subject to a series of accountability mechanisms. It is not enough to simply demand that our intelligence organisations keep us safe from the ever-growing global threat of terrorism; we must equip them with lawful means of doing that very important job.

Schedule 1 of the bill involves simplification, restructuring, correction and language changes as well as some alteration to the numberings in the act. Schedule 1 does not contain any substantive changes; they are merely administrative. The schedule gives effect to recommendations 2 and 3 of the parliamentary joint committee’s report.

Schedule 2 of the bill implements in whole or in part a number of the remaining recommendations of the parliamentary joint committee and addresses other issues which arose during the committee’s review. Schedule 2 clarifies the ability of subjects of either a questioning-only warrant or a questioning and detention warrant to make complaints. It also enhances the requirement that subjects be informed of the capacity to make complaints and facilitate the making of those complaints. The schedule inserts positive rights of contact with a lawyer for those individuals who are subject to a questioning-only warrant, as is already the case with questioning and detention warrants. It also extends the provisions which provide ASIO with the ability to challenge the presence of a lawyer where a person is detained under a questioning-only warrant.

Schedule 2 requires the prescribed authority to explain more clearly their role and includes an explanatory note to signpost avenues of judicial review, both of which are in accordance with recommendations of the parliamentary joint committee. This bill seeks to find the delicate balance between providing our law enforcement and intelligence agencies with the power they need to do the job we demand of them and ensuring the right of Australians to justice, legal representation and procedural fairness.

The amendments contained in this bill provide an opportunity for the lawyer involved to address the prescribed authority during breaks in questioning. The bill also amends secrecy provisions to cater for disclosures to additional complaints bodies and requires the prescribed authority, the director-general and the Attorney-General to take certain issues into account in deciding whether to permit disclosures. Such matters to be considered include the person’s family and employment interests, the public interest and the risk to security.

Schedule 2 inserts statutory financial assistance provisions so that an individual has a statutory right to apply for financial assistance for legal and related costs arising from the questioning proceedings. We recognise that not all individuals have at their disposal the financial resources to engage legal representation. We also recognise the important role lawyers play in ensuring individuals receive adequate protection of their rights.

One of the very important provisions in schedule 2 of the bill clarifies the distinction between questioning-only warrants and questioning and detention warrants. In doing this, the amendments ensure that procedural time spent processing an individual is not counted towards the questioning time limits. This particular provision ensures that the administrative requirements will be complied with, while also ensuring that intelligence and law enforcement personnel are able to use the time within which they are legally able to question an individual for relevant and meaningful purposes.

The Parliamentary Joint Committee on Intelligence and Security delivered its report on the proposed amendments to the Australian Security Intelligence Organisation Act. This bill demonstrates the Australian government’s responsiveness by giving effect to many of the parliamentary joint committee’s recommendations and addressing specific concerns which arose during the review.

In my former occupation, I was a police officer on the front lines. I know all too well the struggle when you are required to do a job but are not afforded the power you require to do that job effectively. The fight against terrorism and the ever-increasing threat that we as a nation face from terrorism cannot be underestimated, and we must empower our intelligence and law enforcement officials with the appropriate power to do their job. These amendments afford them that power while ensuring the rights and freedoms of individuals and by clarifying exactly what those rights and freedoms are. For these reasons I commend the bill to the House.

Anthony Byrne (Holt, Australian Labor Party) Share this | Link to this | Hansard source

In rising to speak to the ASIO Legislation Amendment Bill 2006 today, I want to commend the members of the now Parliamentary Joint Committee on Intelligence and Security, of which I am a member, on its review of division 3, part III of the ASIO Act and the report it produced. In the course of that inquiry, the committee arrived unanimously at a series of 19 recommendations which it believed would strengthen the legislation and enable ASIO and the government to exercise their powers more effectively. It has been part of a fairly long journey to get this piece of legislation right.

I have found it quite instructive to reflect on the history of this bill. I refer here to a Bills Digest which drafted an outline of the legislative history of division 3, part III. It might be worth while for the House to consider this history and look at how this legislation started, because it is quite interesting. The legislative history says that division 3, part III, which relates to ASIO’s questioning and detention powers, was inserted into the ASIO Act as a result of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003. The division adds to the suite of exceptional powers that parliament has entrusted to ASIO. A bill to add division 3, part III to the ASIO Act, the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, was first introduced into the House of Representatives on 21 March 2002 as part of a package of antiterrorism legislation.

When the bill was first introduced, it aroused some community controversy. The 2002 bill enabled incommunicado detention of nonsuspects, both adults and children, for up to 48 hours, with potential for indefinite renewal of the warrants under which they were held. Detention warrants were to be issued by the executive, not by a judicial officer. Contact with a lawyer was not guaranteed. There was no provision for the legislation to be subject to review or have a sunset clause. In 2002, the PJC described the bill as ‘the most controversial piece of legislation ever reviewed by the committee’. The 2002 bill was referred to the PJC and, together with other antiterrorism bills, it was also referred to the Senate Committee on Legal and Constitutional Affairs. Numerous legislative amendments were recommended by both committees.

An amended 2002 bill passed the House of Representatives and was further amended in the Senate. The House of Representatives accepted some of the Senate’s amendments but negatived others that the Senate continued to press. As a result, the bill was laid aside, becoming one of the potential double dissolution triggers at the time. There was a lot of politics surrounding this. We were told that this legislation had to be passed in the interests of national security.

A second bill, the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, was introduced into the House of Representatives on 20 March 2003. This bill was finally passed, after further amendment, on 26 June 2003 and commenced operation on 23 July 2003. During its passage through parliament, amendments were made which to an extent refined and clarified the legislation and ameliorated some of its more draconian aspects. Among other things, amendments were made affecting the legislation’s application to children; the maximum period of detention was set at 168 hours; provision was made for protocols to govern the custody, detention and interview process; criminal penalties were introduced for officials who breached safeguards; ASIO was required to include warrant statistics in its annual report; warrants were to be issued by judicial officers; the PJC was tasked with reviewing the legislation; division 3, part III was sunsetted three years after its commencement—this was in the wake of the Bali bombings and September 11; and the requirement that a subject’s lawyer be approved by the Attorney-General and security cleared was removed.

Division 3, part III—this particular legislation again—has been amended five times since the passage of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003. Major amendments were effected by the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003. This act extended from 24 hours to 48 hours the maximum period of questioning when a subject uses an interpreter and inserted new non-disclosure offences that operate during the currency of a division 3 warrant and for two years after the warrant has expired.

Referring to the Bills Digest again, as things stand, with the above provisions in mind, division 3, part III can be summarised as follows: it enables ASIO to obtain a warrant from an issuing authority that allows adults who are not suspected of a terrorism offence but who may have information about terrorism 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 language in the Bills Digest is quite interesting. It says that this regime is unprecedented in Australia and arguably in the common-law democracies with which Australia is often compared—the United Kingdom, Canada, New Zealand and the United States.

The issue we face is that this is not a mild piece of legislation; it is a piece of legislation that has been framed in the aftermath of Bali and September 11. I agree with the intent of the legislation; we must do all we can do within our powers to prevent a terrorist act from occurring on our soil. It is not the intent of this legislation I have a problem with; it is the application of it. It does not apply the powers effectively. It diminishes the capacity of an authority like ASIO to exercise its powers effectively. If the legislation is not correct, it can also allow a legal challenge through the Federal Court to not permit that evidence to be used—and that is an issue that concerns the committee unanimously. These 19 recommendations that were put forward to the government for response were shaped with that intention in mind—to strengthen the legislation to enable the execution of questioning and detention warrants in a way which would not compromise the agency, the people being questioned or the government. That is why we as an opposition have concerns with two components of the government’s response that have been enacted in the legislation which relate to prescribed authorities and the sunset clause.

Referring again to the Bills Digest, a prescribed authority’s functions and powers include:

• explaining the warrant to the subject of the warrant, informing them of what the warrant authorises ASIO to do, their avenues of complaint and judicial review, and who they are permitted to contact
• directing that a person be detained
• deciding that an interpreter should be provided to a person who is appearing for questioning
• deciding whether questioning is to continue under the warrant and setting breaks between periods of questioning
• directing that a person be released from detention once further questioning is statutorily prohibited
• authorising the police to conduct a strip search on a detainee
• providing a reasonable opportunity for a person’s lawyer to advise them during breaks in questioning, and
• directing that a person’s lawyer be removed if they are disrupting questioning.

The committee unanimously suggested that:

• ‘the supervisory role of the prescribed authority be clearly expressed’—

and the government has agreed in part with this and:

• ‘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’.

In light of the description of the prescribed authority’s functions, the fact that the prescribed authority is invariably a retired judge and the information is generally provided to the issuing authority before the warrants for questioning are issued, I do not understand why the government would say that this is not relevant and that this information should not be provided to the prescribed authority. When the committee was examining these issues and taking testimony from people who had had experience with the process, that inconsistency was one of the key issues raised. Some concern was raised in the minds of some members of the committee that, if there was not a capacity for the prescribed authority to be making judgments based on the full facts, this could be used if it were taken to the Federal Court.

What we are about in this committee is making sure that this legislation works, so I would ask the Attorney-General or, in his absence, the Attorney-General’s Department, to consider this: why is it relevant that this information be granted to the issuing authority but not to the prescribed authority, who sits in on these questioning periods and potentially sits in on the detention periods, because the detention power has not been utilised at this point in time? As I have said before, no-one in this place and no-one on that committee contested the fact that we need to obtain that information, if the body believes it has the information, to interdict or prevent a terrorist act. That point is not in dispute. But what is in dispute in this place—and this is why the opposition is putting these amendments—is how to make sure this legislation can be exercised effectively.

The other issue that we will be moving an amendment on is the review and the sunsetting. I would like to refer to the Bills Digest again with respect to this particular issue. It says:

Division 3, Part III ceases operation on 23 July 2006. Provisions for review and sunsetting were inserted into Division 3, Part III as a result of the PJC’s inquiry into the Australian 2002 Bill. In proposing a sunset clause in 2002, the PJC said:

It will be up to the Government of the day to argue for the continuation of proposed Part III, Division 3 of the ASIO Act which will be inserted by the Bill. The timing of the Committee’s review will ensure that the Government could, if necessary, prepare and introduce a replacement Bill when the relevant part of the Act expires.

In evidence given to the PJC in 2005, ASIO, the Attorney-General’s Department and the AFP argued against any further sunsetting and recommended that the questioning and detention regime become a permanent part of Australia’s counter-terrorism laws. According to these agencies, concerns about how the powers would be used have proved to be unfounded, valuable information has been obtained and concerns about terrorism are unlikely to abate.

I will make a point about that, particularly as to the exercise of the powers. Does it not occur to the Attorney-General that having a review three years after these extraordinary powers have been implemented actually aids the public’s confidence in the fact that these powers are being exercised? If the intent of the authorities is that there should be no sunset clause, how does that inspire public confidence in the fact that there is going to be appropriate scrutiny, an overview, of what are clearly extraordinary powers given to an agency in light of a terrorist threat or a perceived terrorist threat? You cannot have that as a permanent part of the landscape. You cannot have a permanent cold war.

In effect, judgments like this have got to be made on the basis of intelligence at the time. That is why the committee unanimously put forward a five-year sunset clause. Whilst we have an absolute commitment to ensure that these questioning and detention powers are used to interdict or prevent terrorist acts, we also have to be mindful of the fact that the community needs to have confidence in the agency. In fact, in a recent speech the Director-General of ASIO spoke quite strongly of the need for people to understand that ASIO needs to run its operations covertly in the public interest. But it also needs to reassure the public as to its exercising of extraordinary powers like the ones that we are debating here today, so that the public has confidence that these powers will be exercised properly. A 10-year period of time, in my view, and in the committee’s view, does not allow that to happen.

No agency is above review or scrutiny, particularly an agency whose brief is to conduct covert operations on behalf of the Australian community. In doing so, the community gives that agency trust but it also wants accountability, it also wants scrutiny and it also wants to know the agency is doing its job—and, in essence, as I believe and the committee believes, a 10-year sunset clause does not give that assurance or guarantee. The fact is that, regardless of whether we like it or not, a five-year sunset clause encourages the agency and the government to operate those powers with increased responsibility. While I do not believe that a 10-year sunset clause will enable them not to exercise their powers responsibly, I do think a five-year sunset clause gives a market signal: we do not want ASIO to wind up like the then DIMIA.

ASIO is Australia’s front line against a terrorist act being committed in this country. What we do not want, through some sort of legislative slackness, is a culture to emerge within that particular agency which means that shortcuts will be taken. I believe, and the committee believes, a five-year sunset clause will ensure that opportunity or thought will not occur. Certainly, reporting by the agency in question back to the committee indicates that the idea of a sunset clause within a reasonable time frame will work well. What I would ask the agency and the Attorney-General’s Department is this: show me the evidence that having a five-year sunset clause compromises the operation of the agency, because in all of the evidence that was put forward to the committee I saw no suggestion of that at all—and if that is the case I want to know why there is a 10-year sunset clause in this.

I think the committee—and I appreciate that the member for Moncrieff is not here—operates on a bipartisan basis, because that is the way national security should be treated in this parliament. That is what the Australian public demands of both sides of politics. In that spirit, I would ask the Attorney and the government to seriously consider the amendments that the opposition will be moving because, as I have said, they came out of a committee process that was determined to improve the legislation. I believe that if those amendments are accepted that legislation will be improved.

Annette Ellis (Canberra, Australian Labor Party) Share this | Link to 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.

Simon Crean (Hotham, Australian Labor Party, Shadow Minister for Regional Development) Share this | Link to this | Hansard source

I rise to support the foreshadowed amendments to be moved by the member for Brisbane to the ASIO Legislation Amendment Bill 2006. This is another bill to amend our antiterrorism laws. It reflects the government’s response to the recommendations of the Parliamentary Joint Committee on ASIO, ASIS and DSD arising from its review of ASIO’s terrorism related questioning and detention powers. The PJC on Intelligence and Security—formerly the Joint Committee on ASIO, ASIS and DSD—was given oversight of this legislation and it remains an important mechanism for parliamentary oversight.

In the context of this legislation, the PJC has recommended sensible refinements and improvements in the light of the experience of the operation of the legislation. We support the provisions of this bill that accept the majority of the PJC’s recommendations. However, we believe that the PJC’s recommendations relating to information to be given to the prescribed authority and the length of the sunset clause should be accepted as well. The government does not, and that is why amendments will be moved by the member for Brisbane, and that is what Labor is supporting.

I should make the point also that this bill is being debated in far less controversial circumstances than the earlier bills in relation to ASIO’s powers. Debate today is not taking place in the highly emotive atmosphere of 2001 and 2002, following the attacks in New York and the Bali bombings. Post September 11 and those Bali bombings, it was essential for governments and parliaments to respond to requests from enforcement agencies concerning their powers to counter terrorism. But the response, we always insisted, had to be tempered by ensuring that the rights and freedoms fundamental to Australian citizens are also protected. This is the fundamental balance that we as a parliament have to get right.

In the wake of those attacks by terrorists against Australian citizens resulting in horrific loss of life, Labor accepted at the time the argument that ASIO’s powers had to be increased to help deal with this new threat. In essence, ASIO then had powers to ask questions of terrorist suspects but not to demand answers. The law in other circumstances in this country does require people to answer questions—why not have the same requirement for those believed to be associated with terrorist activities? That principle made sense to us and we were prepared to extend those powers, but we insisted that, if they were to be extended, it had to be done in a way that protected the basic rights of the people who were going to be questioned.

The Howard government through this whole exercise since September 11, left to its own devices, has never got the balance right—never. It prefers to play to the politics of fear and insecurity. It has never of its own initiative sought to deal constructively in a bipartisan way to address the issues in this parliament. So up until now it has been left to parliament, with a Senate which until recently the government did not control, to ensure that we got that balance right. The position of the Australian Labor Party has been critical to date in achieving the best possible outcome.

It is worth while reminding this House of the history of that debate and of the proposed legislation—the precursor to this legislation—that the government talked about and wanted to introduce back in 2002 and again in 2003. In that period the government did not deal with this in a rational and calm way. The Prime Minister and the then Attorney-General, Daryl Williams, were only too willing to play wedge politics and to exploit the rhetoric of fear. It was the Labor Party that was committed to getting the balance right and that ensured not only that we had better legislation as a result but that the PJC recommendations, which are before us today, are much more difficult for the government to ignore in pursuing their wedge politics and fear based agenda.

Just think of this: under the original proposed bill back in March 2002, just four years ago, ASIO warrants that this government wanted us to pass could have provided for indefinite detention and questioning of persons who had information on terrorist attacks, including children; detention incommunicado—in other words, no guarantee of access to legal advice for the person being questioned—detention warrants to be issued by the executive—that is, by the Attorney-General—not by a judge; no rights to decline to give information or produce a document; and no penalty for officers who did not administer the bill correctly. In that original legislation, the government provided for no parliamentary oversight, review or sunset provision. Under the government’s original proposals, a 10-year-old child could have been held in detention and strip-searched. This was an outrageous abuse of people’s rights in this country and totally unacceptable. We said so and we opposed it.

Another indication of the haste and recklessness with which the original legislation was drafted was its inclusion of the absurd situation where a terrorist suspect could only be detained and questioned for 12 hours but a nonsuspect who may have had information about a terrorist attack could have been detained and questioned for up to seven days. This legislation then had serious flaws and Labor said so. We were prepared to be constructive: we put suggestions to the government, we debated the issues in the House and the Senate and we worked to make the legislation better to ensure that the terrorists and only the terrorists were targeted. On 21 March 2002 we had the ASIO bill sent for further parliamentary scrutiny by the PJC. That committee was given just five weeks to complete its report. Following public criticism, the government agreed to extend the inquiry to June.

In the meantime Labor conducted lengthy and successful negotiations with the government on the antiterrorism legislation that it was seeking to introduce. Ultimately, the Prime Minister, who had originally proposed more draconian legislation, was forced to admit that we as a parliament had got the balance right. At the National Press Club on 11 September 2002, he said:

We have, of necessity, tightened our security laws. I believe through the great parliamentary processes that this country has ... we have got the balance right.

But understand this: it was Labor’s stance in the parliament that ensured that we did get the balance right. And it was a balance he was not seeking when it came to extending ASIO’s powers back in 2002.

At the time, there were those who argued, and perhaps still argue, that we should not be increasing ASIO’s powers at all. The Labor Party do not agree with those arguments. We have responded to the very real threat of terrorism in a way that increases our preparedness and power to deal with terrorism while, at the same time, keeping the balance and protecting the rights and liberties of individuals.

In the middle of these inquiries that I talked about and post the October 2002 Bali bombings, the government wanted to introduce sweeping powers to enable the Attorney-General alone to proscribe terrorist organisations. We opposed that power as well. We opposed it being in the hands of the Attorney-General—it was too much power in the hands of one person. In the spirit, again, of constructive cooperation, we proposed judicial oversight, not parliamentary oversight, to deal with this. We said that we were prepared to accept proscription by the United Nations. We also at the time moved swiftly and introduced a private member’s bill in this parliament to proscribe Hezbollah, based on intelligence briefings we had been given about the activities of that organisation. Again, it was Labor taking the initiative to deal with terrorism and terrorist organisations while always considering the need to protect the civil liberties of ordinary Australians, making sure that they were not overridden by the hysteria that this government was trying to whip up.

After the proscription debate, which saw us successful in preventing the power of proscription being in the hands of the minister alone, the two Senate committees reported on the ASIO bills. Based on all the evidence that they had had before them, they recommended a number of amendments—amendments we in the Labor Party were prepared to adopt because we believed that they significantly improved the bill in getting the balance right, but amendments the government refused to accept.

In essence, the debate then became around principles that we insisted had to be included in the bill—principles such as the choice of legal representation by the person being questioned; protection of children under the age of 18; a three-year sunset clause to ensure further parliamentary scrutiny; and the introduction of a questioning regime, not a detention regime. We said that, in its application to young people aged 16 and 17, the bill should only apply if they were suspects, not if they were nonsuspects, and we said that the period and conditions of questioning under this bill should be comparable to those under the Crimes Act. We also insisted that rolling warrants could not be available—if there was to be additional detention it had to be based on additional and materially different information.

The Prime Minister of the day insisted on the hard line, ignoring the recommendations of the parliamentary process, ignoring our offers to him to negotiate a successful outcome. The Prime Minister shamefully goaded us in the parliament that Labor would be to blame if we went into Christmas and the parliamentary recess of 2002-03 and there was a terrorist attack. To its great credit, the Labor Party stared him down. We said that he had an option: he could have a bill that was agreed in the parliament if those principles that I have just outlined were adopted. He chose to walk away from the constructive approach. He sought to exploit the politics of division and fear, not to address the new powers for ASIO through legislative reform in a sensible, balanced way. By Labor staring him down, the bill not only was laid aside but became a potential double dissolution trigger.

History will show that there was no terrorist attack over that Christmas. Christmas came and went—and so, it appears, did the Prime Minister’s urgency, having told us in December how important this legislation was. It did not come back into the parliament for another four months. And, when it was eventually passed in June 2003, the bill that the parliament passed was almost identical to what Labor had been proposing back in December. We could have had it in place six months earlier.

It is true that the government did not agree with all of the proposals that Labor put forward, and we were prepared, given that the key ones that I referred to above were adopted, to pass the bill. But, in doing so, we also made it clear that, when elected, we as a government would introduce new amendments to improve the deficient proposals and to implement the ones that we had not been successful in forcing the government to adopt—for example, amending the act to ensure that custody is limited to a maximum of 72 hours under each warrant and also to remove the reversal of the onus of proof for elements of some offences.

I go through this history to demonstrate that it is possible for the parliament to get this balance right—the balance between being tough on the terrorists but also recognising the basic rights and liberties of our Australian citizens. We are making sure that, in getting the balance right, we do not compromise the work of our law enforcers. We got that balance right. This was admitted by no less a person than Dennis Richardson himself, formerly the Director-General of ASIO and now Ambassador to the United States. He had this to say on 19 May 2005 in evidence before the joint parliamentary committee that is making these recommendations:

The legislation that was initially introduced into the parliament with our support—

that is, ASIO’s support—

and advice was much simpler and was, of course, tougher. We debated among ourselves whether the compromises that had been made in the parliament would make it unduly complex. Our concerns were misplaced. We were wrong in worrying about it. As it has turned out, the balance in the legislation has so far been very workable and it has operated very smoothly ...

Again, that balance was only achieved because the Labor Party in this parliament took a stand. It stood by its principles, it stood by its conviction and it was prepared to stare the government down when it was trying to whip up hysteria and fear in the community. The three-year sunset clause that we then insisted upon is the reason we have the amendments before us today: they come as recommendations from that review.

As I said at the beginning, we support this bill subject to the amendments that we will be moving. There are a number of amendments for improving the legislation. These amendments come from a parliamentary process—a bipartisan approach that looks at the evidence and does not look at the political opportunities, which is the only spectrum through which the Prime Minister views these things. I do not need to go through the proposals before us in detail. That has been done by the member for Brisbane. But they do include greater certainty in distinguishing between questioning warrants and detention warrants; protection of client-lawyer privilege; clarification of time periods for questioning; giving right of access to state ombudsmen in relation to the conduct of state police; and improvements to the questioning process. These are all important new safeguards, and we welcome them.

But the government has not accepted the PJC’s recommendation relating to the requirement for ASIO to give the prescribed authority, usually a judge, the full statement of the facts and the grounds on which the warrant is based. The government has not provided sufficient reasons for not accepting that. The Attorney-General did not address the issue in his second reading speech. I hope, given that he is at the table now, he does it today. The government has also not accepted the PJC’s recommendation for a five-year sunset clause, instead proposing 10 years. We believe that is too long and inappropriate. Again, these are matters of balance and judgment. We have demonstrated the ability to get that right far more than the government.

There is a need for tough antiterrorism laws, but there is also a need to protect people’s civil liberties. I support the amendments that are being proposed by the member for Brisbane that will again strengthen the direction and get the balance right. It is always Labor that is putting the constructive proposals forward to achieve that balance.

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

in reply—I thank the members who have contributed to this debate—they include the members for Brisbane, Kingston, Holt, Canberra and Hotham. I agree very strongly with the comments made by way of introduction by the member for Brisbane. These are issues about balancing very important protection measures with appropriate safeguards. In fact, the ASIO Legislation Amendment Bill 2006 reflects the government’s agreement that where there were further suggestions that could be helpful they would be pursued. This bill adds rights and safeguards which apply to the subjects of questioning. The warrant regime will provide for an expanded role of the prescribed authority in directing proceedings and enhance the ability of lawyers to represent their clients.

I say this very deliberately because, if you are going to argue about balance, sometimes there is room for differences of view, but it is very important to start understanding where the balance is. It may have been a mistake by the member for Hotham that he suggested in his comments, when I came back into the House, that somebody could be questioned for seven days. The period is 24 hours with a further extension in particular circumstances. It has not been seven days. I simply make the point it is something that can be done over a period of seven days but they are in individual periods within that time. The member for Brisbane also made—

Simon Crean (Hotham, Australian Labor Party, Shadow Minister for Regional Development) Share this | Link to this | Hansard source

Up to seven days.

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

No, not up to seven days. It is 24 hours. I listened very carefully to what the member was saying. The member continues always to be very argumentative and will never accept any gentle advice.

Simon Crean (Hotham, Australian Labor Party, Shadow Minister for Regional Development) Share this | Link to this | Hansard source

Gentle advice?

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Yes, gentle advice—very gentle—and I intend to continue to be gentle, even with the member for Brisbane. I come in here and find that there are some amendments which, if he had given them to us in advance, we might have been able to help him with. But he proposes to move an amendment which seeks to require the director-general to give an issuing authority a copy of the statement of facts and grounds. The act already requires this at section 34C(4). It already requires it; it is in the act. There may have been somebody else he would like to see given that information but the amendment asks that the issuing authority be given such a statement—the act already requires it. I only mention those matters helpfully because I do not wish to be critical; I hope for enthusiastic support for these measures.

In the context of some of the arguments that we have had today, particularly about the length of the sunset clause and related matters, it really depends upon your perception as to what risks we face and how long you think we are likely to continue to face them. I would like somebody to tell me that within three years terrorist threats will have gone away but I do not hear anybody making that assertion. I know that some people get lulled into a false sense of security and assume that nothing could happen here. I simply say that nothing could be further from the truth. This legislation is designed to assist the relevant agencies that have shown a capacity to help us deal with these situations. There have been people charged with terrorist offences in Australia and convicted; there are a further group of people at present under charge. Our security agencies have played a significant role in relation to these matters. The point I want to make is that we are resourcing our agencies to meet the challenge that we face. We have done so after the Taylor review. The member for Brisbane suggested that, while we are expanding the roles of the agencies, we were not additionally resourcing the Inspector-General of Intelligence and Security.

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

Nowhere near to the same extent.

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I think that is a qualification. Perhaps the honourable member knew that I was going to point out that the Inspector-General has, in fact, been additionally resourced. Those resources are the subject of recommendation, given the nature of the numbers of complaints that he is receiving, and also the assessment, which would include discussions with him, as to what extent he believes it is necessary for him to undertake own motion inquiries. In the budget papers, it will be seen that the Office of the Inspector-General of Intelligence and Security, over a four-year period, has received an additional $3 million to enable it to address the workload associated with the increased activity of the Australian intelligence community.

The honourable member raised some issues in relation to complaints handling. I want to make the point that a person who is the subject of questioning or questioning and detention has a number of complaints mechanisms available to them. They can complain to the Ombudsman, they can complain to the Inspector-General of Intelligence and Security and they can instruct a lawyer to pursue remedies on their behalf. So these are issues that can be effectively addressed and, in our view, we think we have the balance right in relation to those matters as well.

Another point that I want to raise, because it has become the major focus, is in relation to the 10-year sunset clause. The reason we came to the view that 10 years was appropriate was that that was the period settled in relation to other legislation dealing with security issues on which we have been in dialogue with the states. Our view is that these issues ought to be addressed at the same time. You do not need a multiplicity of inquiries and reviews. For that reason, in our opinion, the more appropriate period was that settled in relation to other legislation.

In that context I would simply say that this bill represents an important step in ensuring the continuation of ASIO’s questioning and detention powers beyond July this year and the effective operation of them. We have accepted recommendations of the Parliamentary Joint Committee on Intelligence and Security, and I thank them for the work that they have undertaken. We have not accepted all of their recommendations, but we believe that the legislation is being improved by those that we have accepted. We appreciate the contributions that members on both sides of the political divide have made.

We think that the measures contained in the bill maintain an appropriate balance of civil liberties by enhancing safeguards and conferring more explicit rights on people who are being questioned and detained. These measures, combined with some other changes in response to the PJC and minor corrective changes, will clarify and strengthen, in our view, the effectiveness of ASIO’s questioning and detention regime. The questioning and detention regime needs to operate effectively if ASIO is to continue to have the best set of tools at its disposal for working together with other agencies to ensure the protection of the Australian community.

I conclude by saying that there have been—and reports from ASIO indicate this—a number of people questioned. That has proved very helpful to the agency in its work. The detention regime has not had to be used, but I think the very fact that it is there ensures more ready cooperation from people who might otherwise be resistant to questioning, knowing that it is possible that detention could be sought if cooperation was not forthcoming. The fact that there has not been use of the detention power should not be seen as a basis for suggesting that it is not needed as part of the overall scheme. I commend the bill to the House, and we will deal with the amendments shortly.

Question agreed to.

Bill read a second time.