John Faulkner (NSW, Australian Labor Party) Share this | Hansard source

I too want to speak briefly on the third reading of the Appropriation Bill (No. 3) 2005-2006 and Appropriation Bill (No. 4) 2005-2006 to canvass the same issue that Senator Ray addressed in his speech a moment ago. I support the statements that he made. If we look briefly at the history of this matter: we have just had a government response brought down to the review of ASIO’s questioning and detention powers that was conducted by a committee that was effectively the precursor to the current Parliamentary Joint Committee on Intelligence and Security. That government response dealt with all 19 recommendations of the joint committee. In simple terms, six were agreed to, six were not agreed to, six were agreed to in part and one was not agreed to ‘at this stage’.

I want to focus my remarks, as did Senator Ray, on recommendation 19, which was the recommendation of the joint committee in relation to the sunset clause. Here the government response was described as ‘agreed in part’. That is very misleading. It really was not agreed to at all. The history of this goes back to the original bill introduced in 2002 and passed in an amended form in 2003. The sunset clause proposed in that legislation, agreed to in 2003, was such that the new ASIO powers would expire in 2006. In its review of the legislation—something also provided for in the act itself—the joint committee recommended a sunset clause to come into effect on 22 November 2011. As Senator Ray said, that is in 5½ years time, and that was to follow a review conducted by the joint committee by June 2011. The government has now proposed a sunset clause to come into effect on 22 July 2016. That is to follow a review to be completed by January 2016. I want to quote the responsible minister, the Attorney-General, Mr Ruddock, who said this in relation to the sunset clause:

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

That is what Mr Ruddock said, but I would say that it is not for Mr Ruddock or the government to make that assessment at this stage, by itself, on behalf of future parliaments—on behalf of a parliament that, as Senator Ray says, perhaps no-one who is sitting in this chamber at this time will be a member of. I do not know—I cannot predict the future. I would be happy enough to be alive, frankly, and I certainly will not be a senator at that time, though I have a very close interest in this legislation, as I think any fair senator would say. I was responsible for opposition amendments, both on the floor of this chamber, in moving them and seeing them agreed to, and for having many other opposition proposals agreed to by the then Attorney-General, the discredited, I am afraid, Mr Daryl Williams. There was a great deal of involvement by opposition at that time and a great deal of involvement by this chamber.

There is no doubt that the proposal to have a sunset clause apply in 10 years time, in four parliaments time, is a contempt of the Senate chamber but particularly a contempt of the joint committee that brought down a very fair all-party report. What the government has done here is thumbed its nose not just at the opposition in this place but at all the government senators who took the provisions of this legislation seriously and really did involve and engage in a serious debate around those quite extraordinary provisions. If you are going to have a sunset clause of 10 years, I would argue, do not have one at all.

Remember this: the legislation contains unprecedented powers and those unprecedented powers warrant a thorough and appropriate level of scrutiny and oversight. It needs to be thorough and it is the Parliamentary Joint Committee on Intelligence and Security that has been charged with that responsibility of scrutiny and oversight by the parliament. We need to remember that as we look at this issue of not just the sunset clause but all the provisions. I am concentrating on the sunset clause because I am limited in time. We need to remember that the powers contained within this legislation are extraordinary powers. They break down long-standing legal traditions that date from the time of the Magna Carta in the 13th century. For interest’s sake I will quote parts 38, 39 and 40 of the Magna Carta to the Senate chamber tonight. Part 38 says:

No bailiff for the future shall, upon his own unsupported complaint, put anyone to his “law”, without credible witnesses brought for this purpose.

Part 39 says:

No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.

Part 40 says:

To no one will we sell, to no one will we refuse or delay, right or justice.

You go right back to the 13th century—to 1215—where some of the fundamental legal principles that everyone in this parliament holds dear date from.

I want to say, as I have said before—I probably take a slightly different view to Senator Ray on this—that I believe that ASIO’s detention and questioning powers are barely acceptable. Senator Ray has said that he believes that most of us could live with them. That is true but I think they are barely acceptable. I certainly support, and have done publicly for years, ASIO having enhanced powers to deal with the threat of terrorism in our community, but getting the balance right on this has always been the challenge for this parliament.

Strong review mechanisms were always part of the compact that led to the bill’s original passage in 2003, and it included of course a sunset clause, the capacity for review of the legislation by the joint committee to examine the operations, effectiveness and implications of the act, and the provision by ASIO in its annual report of information and statistics on warrants, questioning time, the prescribed authorities that were used and the like. These were fundamental to the bill’s passage in 2003 and it is absolutely appropriate with these quite extraordinary powers that this parliament ensures that there is a proper review conducted at a reasonable time for such extraordinary powers.

I believe that the parliament will not be fulfilling its responsibility if the government continues to propose a sunset clause to apply in 10 years time—or 10½ years time effectively—from this date. That is not acceptable, it is not appropriate, and we have a responsibility in this chamber and in this parliament to ensure a proper process of examination and scrutiny of how these powers are used and the effectiveness of the legislation.

It is not appropriate to have powers that I believe are best described as emergency powers. They are not just my words. When the legislation was first introduced the then Attorney-General, Mr Williams, said, ‘These measures are extraordinary.’ He went on to say, ‘But so too is the evil at which they are directed.’ Fair enough, but they are extraordinary powers.

If you have these extraordinary powers, the like of which we have not seen at any other stage in Australian history except for wartime—and by ‘wartime’ I mean the two world wars; we have not had powers like this at any other time except during the period of the First and Second World Wars—they should not go without examination, without review and without scrutiny for a decade or more. I hope that the government and the Attorney-General will reconsider what is an absolutely inadequate response to recommendation 19 of the report of the Joint Committee on ASIO, ASIS and DSD, and a very contemptuous response, given the efforts that the then joint committee put into its report on ASIO’s questioning and detention powers.