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

by leave—I move opposition amendments (1) to (4) together:

(1)    Schedule 1, item 2, page 5, after subsection 34D(6) (line 23), insert:

                 Statement of facts and grounds to be provided

        (7)    If the Director-General gives an issuing authority a request under subsection (6) the Director-General must also give the issuing authority a copy of the full statement of the facts and other grounds on which the Director-General considers it necessary that the warrant should be issued.

(2)    Schedule 1, item 2, page 5 (line 29), after

                 “subsection 34D(6)” insert

                 “and provided a statement in accordance with subsection 34D(7)”.

(3)    Schedule 1, item 2, page 9, after subsection 34F(7) insert

                Statement of facts and grounds to be provided

        (8)    If the Director-General gives an issuing authority a request under subsection (7) the Director-General must also give the issuing authority a copy of the statement of the facts and other grounds on which the Director-General considers it necessary that the warrant should be issued.

(4)    Schedule 1, item 2, page 9 (line 13) after

                 “subsection 34F(7)” insert:

                 “and provided a statement in accordance with subsection 34F(8)”.

I make one variation to the first amendment so that it reads:

If the Director-General gives an issuing authority a request under subsection (6) the Director-General must also give the issuing authority a copy of the full statement of the facts and other grounds on which the Director-General considers it necessary that the warrant should be issued.

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

I have no problem with the member making better sense of his amendments and correcting the error that I pointed out.

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

I am indebted to the Attorney for pointing out the absence of the word ‘full’, and I am delighted that its inclusion now overcomes what was his apparent concern a few moments ago because in fact—

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

I am pleased to offer my assistance. I am here to help you out.

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

I look forward to that assistance. No doubt an appropriate form of words can be dealt with in the Senate so that the sense of this very important amendment is given effect to.

Mrs Bronwyn Bishop (Mackellar, Liberal Party) Share this | Link to this | Hansard source

I would just seek clarification from the member for Brisbane that he is moving amendments on which he intends to speak and has a belief in.

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

Indeed, I am. I appreciate your wise counsel about that. The government’s response to the committee report on the matter that is the subject of my amendments was:

The Government considers that it is not appropriate for ASIO to give the prescribed authority a copy of the full statement of facts and grounds on which the warrant is based.

That is what the government said in response to the recommendation of the Joint Committee on ASIO, ASIS and DSD. The government position is that the issuing authority should not have access to the full statement of facts and grounds on which the warrant is based. That is an extremely important principle in the process that we are dealing with. The prescribed authority is a judicial person appointed by this government for the purposes of this act. They are hand-picked. They are chosen to fulfil an important role in the questioning process of those whom ASIO has an interest in. They cannot undertake their role without knowing the full grounds on which ASIO has obtained the warrant, yet the government wants to keep them blind.

The government position is that the judicial oversight should be minimised and sidelined as much as it possibly can be. That, in fact, was its preferred position. The government’s preferred piece of legislation had virtually no judicial oversight at all. John Howard took to the premiers and chief ministers a bill that would have allowed politicians and public servants to decide who gets pulled off the street and taken away, with much fewer rights, I might say, than is now the case, thanks to the efforts of a number of people in this parliament that caused the government to change its view.

Here we have a recommendation unanimously agreed to by the parliamentary committee. The government have not provided any sound response as to why that particular recommendation should not be adopted. There is nothing in what the Attorney has said today, or indeed in the official response of the government to the report, to explain why it is that they think the prescribed authority should be kept in the dark. I invite the Attorney in the course of this consideration in detail to explain to the parliament and the people of Australia why they think the government’s hand-picked appointed prescribed authority should be kept in the dark about why somebody has come before them and why ASIO has a warrant to bring that person before them.

It beggars belief that there could be a security consideration in this. We are talking about officers of the court being hand-picked by the government to fulfil precisely this role of acting as prescribed authorities in the handling of ASIO warrants. So there is no security question involved in this; the only question is one of process. Is the person who is the subject of this warrant going to be in front of a prescribed authority—a judge or a magistrate—where that judge or magistrate has information on which they can properly determine whether questions are appropriate and whether the conduct of the proceedings are correct? That is the question the Attorney has to answer. It is a question that the committee properly put before this parliament. It is a sound recommendation of the parliamentary committee, it deserves the support of this parliament, it enhances the process of warrant questioning and the government are yet to provide a shred of an argument as to why that recommendation of the committee should not be adopted. I look forward to the Attorney-General’s response to that. Indeed, I look forward to a government amendment that gives effect to it, if he has a problem with the ones I have just moved.

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

We are dealing with amendments (1) to (4) and I am just looking at them again. I heard the honourable member for Brisbane seek to amend the provision to add the word ‘full’ when referring to the statement of facts and other grounds. I have no problem with him adding that. I will oppose the measure in any event. The reason the government will oppose the measure is that it does not do what he seeks. He may want to address it in another place. The issuing authority is referred to in clause 7, and he is asking that the director-general give an issuing authority a request under subsection (6). The director-general must also give the issuing authority a copy of the statement of facts on which he considers it necessary that the warrant should be issued. The fact is that under section 34C(iv) that is already required.

The honourable member is asking that the prescribed authority be given that information, but his amendment deals with the issuing authority. The issuing authority has that. That is why we will vote against the opposition’s amendment. But we would vote against their amendment in any event because the role of the issuing authority and the role of the prescribed authority are quite different. The issuing authority has to consider the facts and has to have the facts before him, as I do, in order to know whether he should issue a warrant. We do not seek a warrant until I as the Attorney agree that it is appropriate that a warrant be sought. I should have all those facts before me. That is the decision I have to take and it is the decision the issuing authority has to take. The prescribed authority is in fact the keeper of the ring. He does not make any decisions. He deals with the questioning of a party and ensures that that process is carried out in accordance with law. He deals with the questioning, including determining whether continuation of questioning is appropriate, and that all of the legislative requirements and safeguards have been complied with. That is quite a distinct issue from having to second-guess whether presumably the facts and information included in the request have been sufficient to justify the questioning. That is not his role; it is the role of the issuing authority. We certainly are of the view that, even if the amendments were correctly drafted, it is appropriate to give to the prescribed authority all of that additional information.

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

I thank the Attorney for his technical advice. As he will discover in a couple of years time, the resources available in opposition do not really allow us the benefit of some detailed legal consideration in the time frames we often confront. He will no doubt learn that once again in a year or two. However, I want to set aside the discussion about that technical point, which I now understand and accept, and go to the point at issue. The point at issue is whether the recommendation and judgment of the Joint Standing Committee on ASIO, ASIS and DSD in this matter are right or whether the Attorney’s view is the correct one. Labor strongly hold the view that the committee have this right. I make it clear that, if the government persist with their opposition to this committee recommendation, which we are supporting, a future Labor government will alter the legislation to accord with that recommendation and to ensure that the prescribed authority has the full details of the grounds on which the warrant was issued. The committee said:

The Committee believes that, for the prescribed authority to discharge fully their responsibilities, it is important that they have access to relevant information. The prescribed authority is not currently provided with a copy of ASIO’s statement of facts and grounds which support the issuing of the warrant. Access to this information will assist the prescribed authority exercise their supervisory role and a copy of all the relevant documentation should be provided before questioning begins.

They are right about that; they are correct in that assessment. The prescribed authority needs that information if they are going to properly determine whether the questions being asked are appropriate and whether the behaviour in the course of that questioning is reasonable, given the grounds on which the warrant was issued.

In my speech on the second reading I referred to the seriousness with which Labor have always addressed this committee and the fact that we have highly respected members of the Labor Party who have served on this committee and who do at the moment. I want to now take the opportunity to acknowledge the government members who are on that committee which made that recommendation: David Jull, a former minister, who is the chair; Stewart McArthur, one of the longest-serving members in this parliament; Senator Alan Ferguson, who has a long period of experience on Senate committees, particularly on the Joint Standing Committee on Foreign Affairs, Defence and Trade, which he has chaired; and Senator Sandy Macdonald, who has had a longstanding involvement in defence and foreign affairs matters and is now Parliamentary Secretary to the Minister for Defence. These are people who not just have an interest but, I think it is fair to say, have earned some degree of respect in the security community for their involvement in this field. They have quite correctly made a judgment that, for the prescribed authority to do the job they are supposed to, they need to be given the advice—that is, the full statement—of the grounds on which the warrant was issued.

I listened carefully to what the Attorney said. There was nothing in what the Attorney said to cast doubt on that judgment. The proper course for the Attorney and the government is to accept the principle of that recommendation, to accept the principle of the amendment that I have moved and to give a commitment to introduce a government amendment, if need be, or, in consultation with us, to put forward an agreed amendment to deal with the problem that the committee properly identifies.

I repeat: I believe there is only one reason the government has so far failed to do that, and that is that this government does not support genuine judicial review in this process. It did not from the start. It was not the Prime Minister’s desire. I think this is further evidence of that underlying sentiment within senior government ranks. It is not shared by many on its own backbench. It is clearly not shared by the Liberal members of that joint standing committee. Nonetheless, it is a view shared by senior members of this government. They want that unfettered power. The Attorney-General thinks he should know but a judge who is sitting in these matters should not. That is not the standard the Australian people expect. Of course the Attorney-General should know, but no Attorney-General can put themselves in the position where they deny a judicial officer acting as a prescribed authority the opportunity to at least understand the full grounds of the reasons for which these warrants are issued.

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

I will not detain the House, save to say that an issuing authority is a judicial officer and a prescribed authority is a retired judicial officer.

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

Oh, okay!

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

You are talking about it being judicially reviewed. The decision to issue a warrant is judicially reviewed by a judicial officer. The prescribed authority is a retired judicial officer. This is not about judicial review. It is a question of whether or not—

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

Mr Bevis interjecting

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

No, it is not about judicial review. The fact is that the issuing authority is a judicial officer. He, in effect, issues the warrant. The prescribed authority is not there to undertake judicial review. The prescribed authority is there to ensure that the questioning that is carried out is carried out in accordance with the act. That is what his role is.

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

Without the knowledge on the basis of which the warrant was issued.

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

No. As I said before, he is there to keep the ring and to ensure that the questioning that occurs occurs in accordance with the act. It is quite a different role. In order to carry out that role, it is not necessary for the retired judicial officer to have, as you have called it, the full statement of the facts and other grounds on which the warrant is based.

Question put:

That the amendments (Mr Bevis’s) be agreed to.

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

by leave—I move opposition amendments (5) and (6) together:

(5)    Schedule 2, item 32, page 61 (line 30), omit

                 “22 July 2016”, substitute

                 “22 November 2011”.

(6)    Schedule 2, item 33, page 62 (line 4), omit

                 “22 January 2016”, substitute

                 “22 June 2011”.

These proposed amendments to the ASIO Legislation Amendment Bill 2006 are really a straightforward issue. They concern the question of the sunset clause in the bill. In their speeches in the second reading debate, a number of people made mention of that, and the Attorney-General commented upon it in his summing up. In summing-up, the Attorney said that the justification for a 10-year sunset clause was that the government felt some obligation to stick with 10 years because that is what it had in the bill at the end of last year.

The only reason that 10 years was the period for the sunset clause in the bill at the end of last year is that the government used its newfound numbers in the Senate, where the Liberal and National parties now have a majority, to do what it pleases. The will of the parliament on these matters has been quite clear. When other security related legislation like this has been before the parliament, the parliament has put three-year sunset clauses in place. When the parliamentary committee—and I remind the House again that this is an all-party parliamentary committee, with Labor, Liberal and National Party participation—looked at these bills, it recommended, in the light of the 10 years the government wants, a five-year sunset clause.

By the light of historical terms for this and other parliaments, five years is, frankly, a long time for a sunset clause; 10 years is unparalleled. Ten years is not a sunset clause. The government knows that. The Attorney-General knows it is not a sunset clause. The truth of the matter is that the government does not want a sunset clause at all. But it could not get the premiers to sign up to a deal unless there was a sunset clause. In some remarkable twist of negotiation, it managed to get a 10-year sunset clause agreement out of the COAG meeting, with premiers agreeing to it.

Before the COAG meeting, and since, Labor federally has made clear that a sunset clause is and should be an integral part of legislation like this which affords to our secret intelligence agencies powers that are not normally made available to them. A sunset clause is critical to that. Ten years is not a sunset clause. It is more than the life span in the parliament of most members of this parliament. Most people who come into this parliament exit before 10 years. This sunset clause covers a longer period than the average political life span of someone in the House of Representatives. I am not sure how many of the members of the House who are here now think they are going to be here in 10 years. I have bad news for most of them: most of them will not be, and that includes the Attorney and me.

Ten years is not a period that parliaments generally adopt. In my speech on the second reading, I made reference to the situation in the United Kingdom. The United Kingdom has laws not dissimilar to these. In fact, I think it is fair to say that the Australian government has to some extent sought to model a number of the provisions of our raft of legislation on what transpires in the United Kingdom. The UK has had to deal with terrorist attacks on a number of occasions at home—tragic, terrible incidents that still plague them. Against that background, the United Kingdom parliament has put in place a 12-month sunset clause for these sorts of laws—one year.

I have detailed a number of bills that this parliament dealt with when the Liberal and National parties were in opposition. They had a very different view of the world then. The Attorney-General, it seems, had a different view of the world then; at that stage he was moving amendments to sunset clauses of a far shorter duration—and, I might say, on much less contentious bills.

There is no justification for the recommendation of the joint committee being ignored. The joint committee arrived at its conclusion not only because it was the unanimous view of Liberal, Labor and National members of parliament but because that was the overwhelming weight of evidence, including evidence from security agencies themselves and those who oversee them. That was the weight of evidence the committee got. I am absolutely confident that on this point the Australian people expect a sunset clause of a reasonable duration. Five years is a long sunset clause in the context of all other sunset clauses this parliament has ever adopted. Ten years is ridiculous; it is absurd. The government should relent on this. It should accept the will of the Australian people, the unanimous view of an all-party committee and—I suspect, if there was a genuine secret ballot—the view of its own backbench. (Time expired)

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

In speaking on the proposed opposition amendments to the ASIO Legislation Amendment Bill 2006, let me first outline the reason for the decision for choosing 10 years. Ten years was chosen as a compromise—a compromise between a recommended sunset clause that we think would impede operational priorities and no sunset clause. The view of the agencies, which the honourable member has said we should take some cognisance of, was that there should be no sunset clause. The view of Dennis Richardson, who has been quoted with approval in this House today, was that there should be no sunset clause.

I do know—having oversight of security agencies, and this is a very serious comment—that, when you have inquiries that are a substantial review of all of your operations, they are resource intensive and they impact significantly on operational priorities. Quite frankly, I do not think that it serves our interests to be taking the key people in organisations like ASIO away from identifying the real terrorist threats and requiring them to go before a parliamentary committee, or another form of review, every three years, justifying why those powers are necessary. In the circumstances that we presently face—which nobody can tell us are going to abate—I do not think that is thought to be desirable. I make this point very strongly, and I am prepared to go to any forum, any place, at any time, with the honourable member and argue it. I think Australians would understand why, in those circumstances—the circumstances we face—you would choose the longer rather than the shorter period. That is the reason.

I can go to the debating points. You found a few Liberal members who, when they had not focused on these arguments clearly, were prepared to say, ‘We will compromise with you in a parliamentary committee.’ We found a few Labor premiers who said in the COAG process that 10 years was appropriate. Our premiers outweigh your backbenchers. Is that the debating point we want to make? The view of those in government who have to deal with these very serious issues was that 10 years was an appropriate time for the Anti-Terrorism Act (No. 2) 2005 to exist before the sunset clause comes into effect. Our view is that, as it is sunsetting then, this legislation should sunset at the same time. I find the arguments very compelling.

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

If there were any substance at all in what the Attorney-General just said, then you would have to reflect on the dire straits the United Kingdom is in today. You would have to reflect on the enormous burden placed on the security intelligence agencies, MI5 and MI6—these people who are not able to do their job because the parliament in the United Kingdom—indeed, the government in the United Kingdom—support a sunset clause for these laws of not once every 10 years, not once every five years, not—as we did have—once every three years, but of once a year.

If there were any truth in the Attorney-General’s statement—which, amongst the good-humoured banter across this chamber, he prefaced by saying—and this was the serious point—that it impeded the security agencies; if there were a shred of credibility in that one serious point the Attorney-General sought to put before the parliament—then you would have to conclude that our cousins in the United Kingdom have really got no hope, because they are caught in the bind of forever having to divert resources from chasing terrorists to getting prepared for the next annual review. That is patently nonsense.

A cursory knowledge of the situation with anti-terrorist activity in the United Kingdom would tell you that they have amongst the most sophisticated and capable networks and organisations in the world in dealing with these matters. Are they impeded because their parliament quite rightly says that these secret intelligence agencies, exercising these powers that are not normal in a free and liberal democracy, have to return once a year to the parliament, which has to satisfy itself once a year that these powers should be extended for a further 12 months? Of course they are not. They have not suffered any setback because of that.

Is the Labor Party proposing that there should be a 12-month sunset clause? No, we are not. We are proposing that there should be a five-year sunset clause. A five-year sunset clause is very generous. It is very generous to the government and very generous to the intelligence agencies. Is the Attorney-General seriously saying that the reason the parliament should not review this matter—that these laws should stand, in the normal course of events, for 10 years—is that to ask our security and intelligence agencies to provide advice in five years time somehow stops them chasing down terrorists for the next five years? What total nonsense. I cannot believe that the Attorney-General of Australia, who has responsibility for these matters, could stand in the parliament and proffer that as the serious point to be made in this debate. Ten years is not a sunset clause.

I think the one important thing that the Attorney-General said was that it was a compromise. And he then, I think accurately, said it was a compromise between having none and having one. The government view is that there should be none and so, if you are going to have one, you should make it as absurdly long as you possibly can, and that is precisely what the government have done here. It is absurdly long. A 10-year sunset clause does not stand any test of operational requirement; nor does it stand any test of reasonableness in the public mind. Labor will persist with this amendment.

The Attorney-General commented that perhaps there were some Liberal backbenchers on the committee who supported this because they had not properly reflected on it. I imagine they have had some counsel from senior Liberal Party members as to how they might reflect on these things. In fact, they had reflected on it before. Indeed, this is the second time this committee has recommended a five-year sunset clause. The members of this committee knew full well what the government view was. They knew what it was last November and they made it clear that they disagreed with it. They said it should be a five-year sunset clause. They knew what it was then and they knew the government did not like it, but they also knew that it was a standard that was important for democratic principles.

These sorts of laws should not stand unexamined for 10 years. A five-year sunset clause is generous. The government are wrong on this and they know they are wrong on this. It is a pity that the Attorney-General seems unwilling to accept the commonsense position that the committee has put and which is included in my amendments.

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

The intent here is to have a full review. If you look at page 62 of the ASIO Legislation Amendment Bill 2006, it is repealing a paragraph which speaks of a review by January of the operational effectiveness and the implications of division 3 of part III of the Australian Security Intelligence Organisation Act.

This is not just another vote in the parliament within which the provisions continue. This is about a sunset clause and a review. We have just been through a review, and I know what impact it had on the organisation and its officers. I know the amount of time that had to be spent, and I know the focus that goes into a review and into justifying the continuation of those particular powers and answering all the questions.

If it were just a matter of coming in for a parliamentary vote where the government’s numbers were going to do it and you were going to have a debate, that would be one thing. That is what a sunset clause is about. This is not just about a sunset clause—it is about a sunset clause with a review. That is what it is about.

If you want to impede operational effectiveness, then you take the key people out of your organisation and put them to the task of writing reports and submissions, and then having to submit to examination, monitor what everybody else says and look at how you are going to reply to that. And you must ask yourself the question: does that help with your principal task—that of identifying people of concern—when you have very stretched numbers of people undertaking that work? I can speak truthfully on this, because I have sat down with the people involved and I know what is involved in preparing for these committee examinations, and I know it impedes operational effectiveness. That is why we chose a longer period—because we do not believe this risk is going to abate in three years or in five years, and nor does anybody else. The government rejects the amendment proposed by the opposition.

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

I will not prolong the debate beyond this brief contribution that I want to make now, but I do think it is important to put into some context what the Attorney-General just said. Of course this is not just about a sunset clause per se; it is also about the review that goes hand in glove with it. In the process of a review, it is right that some demands are placed on the agencies involved. That is how it should be in a democracy. In a democracy, the people are actually entitled to call upon those in government and those in the bureaucracy to explain themselves, especially so in areas where those people are afforded extraordinary powers and, of necessity, have to act in a secret manner.

We are talking here about extraordinary powers and about agencies that are not like normal government departments that are subject to, let us say, Senate estimate reviews a couple of times a year. That can never be the case when you are dealing with government agencies involved in protecting Australians from terrorist threats. We all understand that and support that. But that is precisely why, when these extraordinary powers are made available, people should account for themselves on a reasonable periodic basis and for the need for these laws to continue to be in force.

Is once every five years onerous? I do not think people in Australia would regard that as onerous. I do not think most people involved in the process would regard that as onerous. If you do not have that sort of process then you do run the risk of long-serving governments, in particular, establishing procedures that may be out of kilter with what the community wish. Ten years is a long time. We have an election next year. It may well be that Labor could win the election and be in office for the next 10 years, just as the Liberal Party have been in office for the last 10 years. It is appropriate, irrespective of who happens to be in office, that these sorts of reviews are conducted using a reasonable time line.

A five-year sunset clause is, I repeat, very generous—five years is a generous period for the agencies to operate. Is a review in 4½ years going to stop the agencies in their work of trying to track down and deal with terrorists? No, it is not. If the Attorney-General is genuinely saying that then there is a serious mismanagement issue in his department if a review in 4½ years is somehow going to materially prevent Australian security agencies from doing their job. If that is the testimony on the Hansard transcript the Attorney-General wants to give then so be it, but it is a damning indictment of himself and his department if he wants Australians to believe that asking our security agencies to go before a review in 4½ years is going to somehow stop them from tracking down terrorists. Of course it will not. What it will do is put some better balance into the democratic principles upon which this parliament and this country are founded.

Without it, we will be worse off, the nation will be worse off and our democracy will be worse off. The members of the committee knew that. That is why every single one of them supported a five-year review. That is the proper course to be followed. I think it is a sad reflection on the government that they want to hold firm to this view that that sort of balance between necessary powers and important principles of accountability and democracy should be so easily jettisoned.

Question put:

That the amendments (Mr Bevis’s) be agreed to.