Scott Ludlam (WA, Australian Greens) Share this | Hansard source

by leave—I move Greens amendments (23) to (25), (28) and (29) on sheet 6181:

(23)  Schedule 3, item 16, page 29 (line 14), omit “23DC,”.

(24)  Schedule 3, item 16, page 29 (lines 23 to 25), omit paragraph 23DB(9)(m).

(25)  Schedule 3, item 16, page 29 (lines 26 to 32), omit subsection 23DB(10), substitute:

      (10)    To avoid doubt subsection (9) does not prevent the person being questioned during a time covered by a paragraph of subsection (9), but if the person is questioned during such a time, the time is not to be disregarded.

(28)  Schedule 3, item 16, page 37 (lines 7 and 8), omit “20 hours”, substitute “44 hours”.

(29)  Schedule 3, item 16, page 37 (line 12), omit “, 23DD(5)(b)”.

We also oppose schedule 3 in the following terms:

(26)  Schedule 3, item 16, page 29 (line 33) to page 30 (line 4), subsection 23DB(11) TO BE OPPOSED.

(27)  Schedule 3, item 16, page 30 (line 12) to page 34 (line 8), sections 23DC and 23DD TO BE OPPOSED.

These are extremely important. They are among the more important items that I am bringing to the chamber tonight, and that is because most Australians and most people living in democratic societies would, I think, have a reasonable belief—or even a reasonable suspicion—that they can be free from being arbitrarily detained for long periods of time—that is, snatched, held without charge, interrogated, unable to contact lawyers necessarily or family or other people. In some cases, according to these laws, you are able to let people know that you are being held but you cannot say why. These specifically go to precharge detention provisions, which so notoriously came to light in the instance of Dr Haneef, who did fall foul of them.

There are some changes here. I think the way the government has approached these provisions of the terror laws, which were so soundly criticised, in a way provides us with a bit of a microcosm for how the government has handled these reforms overall—that is, with timidity and without any imagination or any ability to look a little bit more deeply into the debate and into the contributions some people have made. The existence of the precharge detention and the periods of time for which people can disappear received a very close scrutiny and subsequent criticism from the Clarke inquiry in the wake of the Mohammed Haneef fiasco.

Firstly, we do commend the government on the bill’s amendment to restrict the hearing and the grant of applications to extend time under proposed section 23DB of the Crimes Act to a magistrate, rather than under the existing framework whereby applications may also be approved by JPs or a bail justice. So the government is to be congratulated for narrowing that range of people and setting the bar a little bit higher as to who is able to allow these things to occur. We also support the government’s decision to place a cap on time that individuals may be held in precharge detention even though it does not go nearly far enough to ensure compliance with Australia’s international obligations that people not to be held arbitrarily without charge for extended periods of time.

Part 1C of the Crimes Act currently provides the Australian Federal Police with the power to arrest and detain a person without a warrant for an indefinite period of time, or the AFP may investigate as to whether the individual has committed a terrorist offence. Part of the problem with the procedure for precharge detention is the very confusing nature in which the current section 23CA of the Crimes Act is drafted. You can see here, I think, the original intention of the act has had successive legislative grafts attached to it. It has proliferated and has become very complex, I suspect, even for officers in the field who are trying to work with these sections of the legislation.

There are actually three separate mechanisms for extending the investigation period beyond the usual four-hour limit for a terrorism offence. Do we actually need three different ways for the detention period to be delayed or extended? I can recall quite clearly Senator Parry sitting next to me when this matter was being heard by the Legal and Constitutional Affairs Legislation Committee and it did take a while for the committee to nut out exactly how the system works because it is so inordinately complex. So senators should be aware that we are seeking to do two things here, effectively. One is to draw down the period of time for which people can arbitrarily disappear and the second is to simplify the mechanism by which the unspecified time can be extended—that is, the dead time that was used to hold Dr  Haneef—and I am hoping that we can hold a debate on the merits of these two separate ideas.

Of the three mechanisms, firstly, we have an extension of investigation time mechanism, which provides that applications may be made to a judicial officer to increase the investigation period any number of times to a maximum of 20 hours, meaning that the total investigation period may now be extended to 24 hours. So we started with four hours and we have used the first mechanism to add another 20 hours. Secondly, there is a specified disregarded time mechanism, which is actually one that we support. Specified time includes categories of time such as for the individual to communicate with a legal practitioner or with their family, to receive medical attention, or to rest and recuperate. We do not oppose such specified time being disregarded. Obviously if the suspect is asleep, then the clock should stop, and we think that is appropriate.

However, we are very concerned with the third extension of time mechanism for what is called ‘unspecified disregarded time’ contained in section 23CA(8)(m) of the Crimes Act and proposed in section 23DB(9)(m) of this bill. Under the unspecified disregarded time mechanism as it currently exists there is no cap on the amount of time an individual may be detained. It is this provision which is responsible for Dr Haneef being held for 12 days without charge by the Australian Federal Police in a case that, from the outset probably, became highly politicised.

The amendment proposed by the government in this bill of placing a seven-day cap on unspecified disregarded time is of course an improvement on there being an indefinite cap or effectively no cap at all. But this amendment does not scratch the surface on the human rights concerns with such a provision. It leaves a mechanism in place and it leaves an inordinate complexity in the police officers being able to apply for three different ways of extending the period of time someone is detained. Even with a seven-day cap in place on unspecified disregarded time, there is still the initial four hours that can be extended to 24 hours by an application to a judicial officer. So therefore we are left with a running total of eight days, which may in fact end up being much more than eight—this is under the government’s proposed amendments—with the inclusion of any of the categories of specified disregarded time, that is, sleep, time zone differences, or whatever that might be, which includes that range of times including rest and recuperation. We could assume safely, I think, that rest and recuperation could be quite an extensive period of time if the individual has been detained for eight days without charge. It will most likely be a time period not much less than 12 days, the same period of time that Dr Haneef was detained. I think that it is entirely questionable whether a notional seven-day cap, which can be blown out to as many as 12, we believe, is any kind of improvement at all.

As with all terrorism related offences and procedures, the Australian Greens understand the need to protect the Australian public from violence, but we are not convinced that an individual should be subject to being detained for more than seven days without charge, which is what these amendments do. Terrorism related offences are international in scope and therefore there are likely to be practical differences in obtaining communications with relevant law enforcement agencies elsewhere in the world, and I think we probably did see that with Dr Haneef. However, there are many more offences with an international scope completely unrelated to terrorism where precharge detention is not altered from the usual investigation period. The two that come to mind most obviously would be people-smuggling offences or child pornography offences. So we believe the bill’s amendment is still not proportionate or justified in that it is in breach of Australia’s international obligations. Article 9(1) of the ICCPR provides the right not to be arbitrarily detained. Article 9(3) provides that an individual charge must be brought promptly before a judge. So the bill’s amendment for a cap of seven days on unspecified disregarded time does not alter the fact that Australia will be in breach of its obligations under the ICCPR. This is the fourth or fifth time that I have mentioned this instrument in the course of the debate tonight and it does not seem to upset the government much to continually be reminded that we are in breach of international human rights obligations.

Case law from the European Court of Human Rights on the equivalent provision of paragraph 3 of article 9 of the ICCPR and the European Convention on Human Rights deemed that there should be a strict time limit of four days on detention without judicial control, which is obviously considerably less than the seven-day cap that is proposed by the bill. The Australian Greens propose that the precharge detention regime be simplified and we ensure that Australia is compliant with its international obligations. So they are the two things: the period of time and the mechanisms whereby it is extended.

We believe that proposed section 23DB(9)(m) should be removed from the bill, as stated in the Clarke report in relation to the equivalent provision currently in the Crimes Act. Clarke says:

It is not accurate to describe the s. 23CA(8)(m) dead time as dead time. Rather, it is additional investigation time, and the only reason questioning is suspended during that time is because the section so permits.

It is unjustifiable. Proposed section 23CA(8)(m) is, therefore, out of place amongst the other dead time provisions for sleep or whatever and should be included within the power for the AFP to have investigation time extended. Having three mechanisms whereby investigation time may be extended is unnecessary and creates further confusion as to the powers of the AFP and the rights of the individual.

Therefore, the Australian Greens propose, in line with the Clarke report recommendations, that the bill be simplified by removing the unspecified disregarded time mechanisms contained in proposed section 23DB(9)(m). We would then have just one system for extending investigation time and that would be through applying to a judicial officer, as per the government’s amendments, to extend investigation time beyond the usual four-hour investigation period.

The Greens propose that accompanying the simplification of the precharge detention regime should be providing a judicial officer with the power to extend investigation time beyond the 20 hours proposed in the bill. We support an extension of 44 hours to bring the maximum investigation period with the approval of a judicial officer to 48 hours. That is the total cap we are proposing here with these amendments tonight—two days. Even with the inclusion of specified disregarded time, the precharge detention regime would be in compliance with Australia’s international obligations to not arbitrarily detain as has been interpreted by the European Court of Human Rights.

So, as noted before, I am sure I am going to win a couple of these votes tonight. I sincerely hope that this is one of them.