Kerry Nettle (NSW, Australian Greens) Share this | Hansard source

I move the Australian Greens amendment (3) on sheet 5211:

(3)    Schedule 3, page 154 (after line 5), at the end of the Schedule, add:

Part 4—Amendments relating to period of arrest

Crimes Act 1914

23  Subsection 23B(1)(definition of investigation period)

Omit “or 23CA, as the case requires”.

24  Subsection 23C(1)

Omit “(other than a terrorism offence)”.

Note:   The heading to section 23C is altered by omitting “if arrested for non-terrorism offence”.

25  Subsection 23C(6)

Repeal the subsection, substitute:

        (6)    If the person has been arrested more than once within any period of 48 hours, the investigation period for each arrest other than the first is reduced by the amount of any earlier investigation period or periods under this section, as occurred within that 48 hours.

26  Section 23CA

Repeal the section.

27  Section 23CB

Repeal the section.

28  Subsection 23D(1)

Omit “a serious offence (other than a terrorism offence)”, substitute “serious terrorism and non-terrorism offences”.

Note:   The heading to section 23D is altered by omitting “if arrested for non-terrorism offence”.

29  Section 23DA

Repeal the section.

30  Subsection 23E(1)

Omit “or 23DA”.

31  Subsection 23E(3)

Omit “or 23DA(5)(as the case requires)”.

32  Paragraph 23XGD(2)(h)

Omit “or 23CA(8)”.

This amendment goes to the matter of the ability of the Australian Federal Police to hold people without charge. This relates to the case of Dr Mohamed Haneef, who we all know was held for 12 days without charge. This was the first time that we saw these terrorism laws exercised in Australia—the ability to hold somebody without charge—and it is worth us reviewing how those laws came into effect.

At the time that the legislation was put before the parliament, there was a Senate inquiry into the matter—in 2004—and there were also a number of questions that were asked in the Senate chamber in relation to this matter. The government was well aware at the time of what it was asking for: an extraordinary power to be able to hold people without charge. At that time, understandably, there were a number of questions from myself, from other members of parliament and also from public interest groups, who had a concern about how such powers may be exercised. I want to remind the Senate what we were told at the time about how such powers would be exercised. I will do so by quoting the Hansard of the Senate inquiry into this matter and, in particular, the comment by Mr Geoff McDonald, who at the time was the assistant secretary of the criminal law branch of the Attorney General’s Department. He told the Senate inquiry:

I would be extraordinarily surprised if the dead time—

and, perhaps to explain: the ‘dead time’ is the period of time for which somebody can be held whilst questioning is not occurring. He said:

I would be extraordinarily surprised if the dead time, for example, in relation to the time zones, would get anything like the sorts of time periods that were being suggested by Professor Williams.

That is referring to Professor George Williams, who was suggesting 24 hours. The Attorney-General’s Department said they would be extraordinarily surprised if somebody would be held for 24 hours in the dead time. And he said:

I have spoken to the Victorians about cases in Victoria concerning reasonable time and what the court has considered to be reasonable time, and the court has considered periods like 16 hours to be reasonable.

This was in response to evidence given to the committee by Professor George Williams from the University of New South Wales who was concerned about giving the extraordinary power to the Australian Federal Police to hold people without charge. He mentioned that it could mean that people could be held for 24 hours. The Attorney-General’s Department indicated that they would be extraordinarily surprised if that were the case. There was a debate around the issue of what the court would consider to be a reasonable period of time to hold somebody before they were charged. The examples that were pointed to were determinations that the Victorian courts had made about what would be a reasonable period of time—as I just quoted to you: 16 hours.

Mr Geoff McDonald from the Attorney-General’s Department went on to say:

In fact, I actually expect with this legislation that in reality the periods of the extensions will not be up around the full 24-hour limit. I expect that they will be within that period and that in fact the dead time will in many cases still come within that limit.

So there we have an indication from the Attorney-General’s Department, at the time that the legislation was being debated, that we are talking about the realm of 24 hours. We all accept that the legislation allows people to be held indefinitely without charge, as long as they get approval from the court along the way, but the capacity is in the legislation to do that and this was pointed to by a number of individuals, including the Greens. At the time that the legislation was being debated by the parliament, the proposal was that 24 hours was the sort of time limit we were looking at.

The very first time that these powers were used by the Australian Federal Police, in the case of Dr Haneef, he was held for 12 days—that is, over 200 hours. So the parliament was told: ‘Give us these extraordinary powers.’ The parliament was told that 16 hours, maybe 24 hours, was the kind of time frame, the realm, that was considered to be appropriate or acceptable when the government was saying, ‘Give us the power so that we can do this,’ and the very first time they were used Dr Haneef was held without charge for over 200 hours—12 days.

I think there are a number of matters in this. Of course, there is the fundamental issue about whether or not people should be held without charge and whether people’s liberties should be taken away, unless it is decided so by the court. We also have the matter of what the government told the parliament at the time that they were asking for these extraordinary powers, which, as I have indicated, was 16 hours, maybe 24 hours or less than 24 hours. I think there are lessons to be learnt from what we have seen in the case of Dr Haneef and the period of time for which he was held. One lesson is that the government cannot be trusted with these extraordinary powers.

I am moving this motion today, on behalf of the Australian Greens, to return us to the situation that we used to have: the situation that has been acceptable in this country all the way through until the decision to put in this law occurred in 2004. Just to outline that situation: it allows people to be held for four hours and then for an application to be made for an extension of that period of time. Again, that is where the debate was: the court had considered it reasonable to extend the time to 16 hours. So we are talking about maybe 20 hours or even 24 hours for which people are able to be held. That is actually what representatives of the Attorney-General’s Department were telling us would occur with the extraordinary powers that were given in 2004. The realm we were talking about was 24 hours and, the first time that we saw the powers exercised, it was for over 200 hours. This amendment returns us to that situation.

That does not prevent investigations continuing. We have seen that in the case of Dr Haneef. Commissioner Keelty and others have talked about ongoing investigations continuing. Charging somebody does not prevent investigations continuing. In fact, it allows the proper course of the court to operate so that there can be bail applications, cases can be put forward and the magistrate can determine the decision in relation to whether or not the granting of bail should occur. This amendment from the Australian Greens seeks to offer the parliament the opportunity to learn from the case of Dr Haneef, where we saw these powers exercised for the first time, and he was held for over 200 hours when the parliament had been told that what would be considered reasonable when this power was used was in the realm of 24 hours. That is what we are saying: given that is what we were told at the time and that that is what was put forward as acceptable and appropriate, let us have that in our law rather than this indefinite detention—the capacity to hold people indefinitely without being charged, as long as the court agrees all the way down the course. What we have seen is that, the very first time that the legislation was used, it was used for over 200 hours. This is the opportunity for the parliament and the Senate to learn the lesson from the case of Dr Haneef and return us to a situation where people cannot be held indefinitely without charge. That does not stop investigations occurring, but it says: ‘Let’s operate properly in the way we have always operated, until this case of Dr Haneef.’