Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

by leave—I move opposition amendments (1), (2), (3) and (4) on running sheet 4945:

(1)    Schedule 1, item 2, page 5 (after line 23), at the end of section 34D, add:

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 give the prescribed authority a copy of the statement given to the Minister under paragraph (3)(b).

(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 line 7), at the end of section 34F, add:

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 give the prescribed authority a copy of the statement given to the Minister under paragraph (3)(b).

(4)   Schedule 1, item 2, page 9 (line 13), after “subsection 34F(7)”, insert “and provided a statement in accordance with subsection 34F(8)”.

The government has looked at ASIO’s questioning and detention powers and has obviously taken the time to look at the report of the Parliamentary Joint Committee on ASIO, ASIS and DSD, but it has failed to seriously consider all of the recommendations that were put forward. When you examine the report, you will notice that it goes to a significant issue which the government has not agreed with. Having picked up a number of recommendations out of the parliamentary joint committee report, the government has not picked up and put into this bill the issue of the statement of facts and grounds to be provided.

The opposition thinks the committee’s recommendation on this issue is sound. It was an all-party committee that came to accept these recommendations and put them before parliament. Judging by the size of the report, the committee took significant time to look at and consider all of those matters in some significant detail. It is worth taking the opportunity to go into detail in considering recommendation 10, which states:

The Committee recommends that:

- the supervisory role of the prescribed authority be clearly expressed; 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.

I encourage those who are able to to look at page 59 of the report in more detail—in particular, paragraph 3.59, which states:

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.

It would seem not only sensible but also a course of action that can be followed.

There might be an argument from the government that the information would be secret or should not be provided but I think that, when you look at the seriousness of the issues involved, when you look at the overall regime that is being put in place and when you look at the parliamentary joint committee’s recommendations, you will see that the government has not adequately dealt with this particular issue. Although the process and the regime have not been used significantly, this is an area that the government should get right. It seems to be one of those basic rights that you should be able to have access to relevant information. Without that access, you are faced with the position of the prescribed authority not having and not being able to fulfil their proper supervisory role. They certainly will not have all the copies of relevant documentation, which they should have before questioning begins.

The government has chosen not to adopt this particular recommendation. It will be interesting to hear the government’s defence of that decision. If the defence is about secrecy, I do not think it washes in this regime. The defence can only be about not ensuring that there is the ability for the supervisory authority to have documentation relevant to the issues before them. But I will wait for the government to outline its position, and we can make up our minds from there.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The Greens will be supporting the amendments. I want to ask the minister a couple of questions about the sections that Senator Ludwig was talking about and others. On page 61, section 34ZY says instruments are not legislative instruments. What does that mean?

Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

While we find that, I will address the points made by Senator Ludwig. I will return to Senator Brown’s question in a moment. We have to look at the difference between a prescribed authority and an issuing authority. An issuing authority is a judicial figure who issues the warrant. The prescribed authority is a retired member of the judiciary who oversees the questioning and has a supervisory role, if you like. You have to remember that they are two different roles.

The issuing authority gets a copy of the warrant with a statement of the facts which form the basis of the request for the warrant to be issued. Of course you would want the facts to be disclosed to the person who issues the warrant; you would not want a warrant issued capriciously or in inappropriate circumstances. You have to fully inform that person of the situation so that they can make an informed decision.

The situation with the prescribed authority is somewhat different. They get a copy of the warrant before the questioning commences. However, they do not have the statement of facts which the issuing authority has—and appropriately so. There is no aspect of it which would aid them in their role; their role is quite different. It is more of a supervisory role. That is why the government is of the view that it is simply not necessary and it does not see how it advances the situation at all.

Senator Brown’s question dealt with section 34ZY. That section declares that instruments made under the bill are not legislative instruments. The section is intended to merely restate the position in the current act—that is, to be declaratory of the law. It was included to clarify that instruments created under division 3, other than the ASIO protocol, are not legislative instruments. There are a number of written instruments that can be made under division 3 of part III of the act, as proposed to be amended by the bill. Those instruments are not of a legislative character.

Section 34ZX allows the minister to make guidelines relating to financial assistance. Those guidelines are intended to be made under subsection (4) of that section and are not expected to be legislative in character. They are expected to cover procedural issues, such as the process for lodging a financial assistance application and the level of fees available to barristers and solicitors representing the person who is questioned or detained. As the guidelines would not affect a person’s right to apply for financial assistance, they are expected to be administrative in character.

Section 34ZY therefore serves a declaratory function. There is no policy intention to exempt any instrument that is legislative in character. That distinguishes the various instruments that I have referred to. If Senator Brown has any further questions, we can accommodate him.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I do. I ask the minister about section 34ZO, which limits contact with a lawyer of choice. It says in subsection (1):

(1) The person (the subject) specified in a warrant issued under section 34G may be prevented from contacting a particular lawyer of the subject’s choice if the prescribed authority—

the retired judge—

before whom the subject appears for questioning … so directs.

Section 34ZO goes on to say that the retired judge:

... may so direct only if the authority is satisfied, on the basis of circumstances relating to that lawyer, that, if the subject is permitted to contact the lawyer—

that is, if the person is going to ring up their lawyer—somebody else might be tipped off about a terrorism offence that is being investigated or some record might be destroyed. In other words, the lawyer is a security risk who is going to tip off people who might be terrorists. All that the section says is that the authority must be satisfied ‘on the basis of circumstances relating to the lawyer’ before the lawyer should be effectively struck off for this matter. Could the minister give the Senate, with some definition, an explanation of what the term ‘on the basis of circumstances relating to that lawyer’ means? What is it that disqualifies a lawyer? What did the minister have in mind when he wrote that clause?

Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I will take that question on notice for the time being and see what we can get for Senator Brown in relation to that. I am not so sure that it is prescribed as such but, as to the intent behind it, we will see what we can find on that and get back to him. In the meantime, if there is another question, we can deal with that and hopefully have the answer for this question at the conclusion of that one.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

We have heard from Minister Ellison—and it was an answer that I thought I might get from him—that there is a difference between an issuing authority and a prescribed authority. It seems relevant for the issuing authority to have the statement of facts but not so relevant for the prescribed authority to have it. It is really a handy and neat little trick.

The role of the issuing authority is clearly different to that of the prescribed authority but it is no less important to the process to ensure that there is fairness and due process. The prescribed authority—that is, the person that the minister by writing appointed a prescribed authority, who has served as a judge in one or more superior courts for a period of five years and no longer holds a commission as a judge of a superior court—should not be excluded from having that information before them. The minister may by writing appoint as an issuing authority a person who is a federal magistrate or a judge. Of course, the authorities do have differing roles but they are both significant and important in the overall process of the powers that are going to be exercised under this legislation.

The prescribed authorities are people who in the view of the minister, as in the act, play an important role, and they are appointed from a very limited class. In fact, division 3, part III, section 34B, the ASIO Act 1979 states:

(2) If the minister is of the view that there is an insufficient number of people to act as a prescribed authority under subsection (1), the minister may, by writing, appoint as a prescribed authority a person who is currently serving as a judge in a State or Territory Supreme Court or District Court (or an equivalent) and has done so for a period of at least 5 years.

Looking at their role in the proceedings, 34E states:

(1) When the person first appears before a prescribed authority for questioning under the warrant, the prescribed authority must inform the person of the following:

(a) whether the warrant authorises detention of the person by a police officer and, if it does, the period for which the warrant authorises detention of the person;

(b) what the warrant authorises the Organisation to do;

(c) the effect of section 34G—

which I might come to shortly—

(including the fact that the section creates offences);

(d) the period for which the warrant is in force;

(e) the person’s right to make a complaint orally or in writing—

to various persons, including—

(i) to the Inspector-General of Intelligence and Security ...

                 …         …           …

(f) the fact that the person may seek from a federal court a remedy relating to the warrant or the treatment of the person in connection with the warrant;

(g) whether there is any limit on the person contacting others and, if the warrant permits the person to contact identified persons at specified times when the person is in custody or detention authorised by the warrant, who the identified persons are and what the specified times are.

Of course, their role is, by its very nature, separate to that of the issuing authority but it is no less important in ensuring that all of those matters are dealt with, seen to be done and done by the detaining authority.

To do their role adequately it would seem sensible for them to have that information before them. It would seem sensible to ensure that when you provide the warrant you also provide the facts and statements that underpin the warrant. You have to look more broadly than simply at the short words that might be on the warrant. The statement that is contained within the warrant might be quite limited and the prescribed authority could miss the contextual setting, the matrix of facts and circumstances that underpin the warrant, that they need to be aware of to be able to exercise their role in accordance with legislation. It would seem logical to me and of no great impost for that information to be provided.

I was hoping the minister might have tried the secrecy line. There are provisions that ensure that matters are kept secret. But the minister chose to use the line that they are a different body and therefore we can treat them differently. The parliamentary joint committee had a look at the matter and came to the conclusion that they should have the facts and information on the circumstances. It seems to me that they came to a decision which was quite sensible. They understood, as I suspect the minister also did but failed to acknowledge, that you do have to take into consideration the contextualisation of the issues to be able to fulfil your duties properly and appropriately under the legislation.

It seems to me that I can argue this point but the minister is not going to concede it. He is not going to see the proper course nor amend the legislation to accord with the proper view which the parliamentary joint committee came to and which this government should also come to. I will not take up a significant amount of the chamber’s time on this issue. I will leave that to the second amendment.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I note that there has been a change in the government representation. It is a little rude of the government not to give the answer that Senator Ellison committed to giving to my submission before he left and was replaced by Senator Abetz. I would like to have that answer, thank you.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

If we are going to talk about rudeness I note that when I looked over, thinking whether I should answer the particular question, the honourable senator who complains of rudeness was, in fact, on the telephone and therefore I thought he was otherwise engaged and would not be able to listen to the answer. Now that he is off the telephone, we as a government of course are more than happy to oblige the honourable senator with the answer.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Senator Bob Brown interjecting—

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

Senator Brown can laugh, but there is no doubt—and I am sure even the TV monitor might show—that he was on the telephone. The question that Senator Brown asked, as I am advised, is: what does it mean on the basis of circumstances relating to that lawyer in clause 34ZO(2)? I understand that was Senator Brown’s request. What I would invite him to do is to read the whole clause and then it will become apparent to him.

The heading on 34ZO is ‘Limit on contact of lawyer of choice’. Subclause (1) says:

The person (the subject) specified in a warrant ... may be prevented from contacting a particular lawyer of the subject’s choice if the prescribed authority before whom the subject appears for questioning under the warrant so directs.

Subclause (2) says:

The prescribed authority may so direct only if the authority is satisfied, on the basis of circumstances relating to that lawyer, that, if the subject is permitted to contact the lawyer:

(a) a person involved in a terrorism offence may be alerted that the offence is being investigated; or

(b) a record or thing that the person may be requested in accordance with the warrant to produce may be destroyed, damaged or altered.

It is in relation to those two specific paragraphs, (a) and (b), that the circumstances relating to that particular lawyer relate. So Senator Brown’s question can be very easily answered by looking at the paragraphs (a) and (b) of subclause (2). They are the circumstances in which the prescribed authority can so direct, but they can only do so if they are satisfied. The prescribed authority, as I understand it, is any retired judge, so it is a person who has knowledge of the law and has an understanding of the onus of proof, and he or she would need to be satisfied that there was a risk in relation to the matters that I have outlined.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

This is going to be hard, Temporary Chair. Can’t we get Senator Ellison back?

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

How droll! This is schoolboy debating style.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I think it is time to move on.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Oh dear! Never mind, I will have one go. I am not going to be complicit in wasting the chamber’s time too much. Senator Abetz says that paragraphs (a) and (b)—which I read out before he came in, belatedly, to the Senate chamber—describe the circumstances relating to a lawyer which would have the lawyer prevented from seeing the client. Well, they do not describe any such circumstances at all. Paragraphs (a) and (b) indicate what it is about a lawyer that may make the lawyer suspect, but they do not give the outline of how it is that you get to a situation of being able to be convinced through some previous behaviour of the lawyer—which would need, of course, to be grounded in fact—that made them suspect under (a) and (b). I was going to ask Senator Ellison about that but I think I am snookered by his absence from the chamber. I will not press this at all with Senator Abetz. We will have to proceed without having the question answered.

I did want to ask some other questions relating to the ways in which the legislation circumscribes the minister’s power to ban organisations. Maybe Senator Abetz could tell the committee how this legislation does that.

The Temporary Chairman:

Senator Brown, I think the minister is asking you to repeat your question.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

I think I understand the question, so allow me to try to repeat it and if I misheard I am sure Senator Brown will correct me. I understand Senator Brown was asking how this legislation deals with banning particular organisations. Is that correct?

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

No.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

All right. Repeat your question. I did not hear it correctly.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The committee thought that the powers of the minister were too free in banning, in deciding to prohibit certain organisations. I was wondering if the minister could tell us how this legislation meets that concern of the committee?

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

Clearly, I did hear the question correctly. I used the word ‘ban’. Senator Brown, on his second attempt, substituted the word ‘prohibit’ an organisation. What is the difference? I would be interested in seeing what the Hansard said in relation to Senator Brown’s first attempt at asking the question because I am sure I distinctly heard the word ‘ban’, but I am willing to stand corrected. We will play these tactics of not wasting time, according to Senator Brown, but I am not sure what the difference between ban and prohibit an organisation is.

As I understand it, this legislation does not deal with the banning or prohibiting of organisations. That is in the Criminal Code, which is another piece of legislation. Senator Brown says, ‘It is going to be difficult,’ because I am now taking forward this legislation for the government. I can understand why it is going to be difficult for him, because he is asking about bits and pieces that do not even relate to this particular bill. So I can understand why he now has indicated his desire to raise the white flag on other matters as well.

In relation to the first point that he raised, saying that questions were not being answered, yes, the question was answered. It was answered in a way that exposed Senator Brown’s inability to read the legislation properly, so all he does is repeat the assertion as though somehow, by repeating a false assertion, all of a sudden it clothes itself in truth and gets some gravitas behind it. Mere repetition does not make an assertion a fact. What I have indicated in my previous answer remains.

Can I add—for the further edification if not of Senator Brown then at least of other senators in this place, such as Senator Marshall, who I know takes a very keen interest in this legislation—that it will have to be determined on a case-by-case basis and of course will be assisted by advice from time to time from relevant agencies such as, I would imagine, ASIO. The prescribed authority would need to satisfy itself that that information was sufficient to warrant the particular action foreshadowed in clause 34ZO being taken by the prescribed authority. So the discretion remains with the prescribed authority and the issue is very clearly and squarely directed at addressing potential security concerns.

With great respect to the honourable senator, we know that he does not support this legislation or this type of legislation. That is an important philosophical difference between us, and I accept that. I am willing to say that there is a parting of the ways—if there was ever a meeting of the ways—and that is to a certain extent irresolvable. But to come into this place and ask questions about how certain organisations might be banned or prohibited or to deliberately seek not to understand 34ZO(2) does him and the chamber no justice. Let us have the philosophical debate on whether we need to address some of the issues at stake in this legislation. I invite honourable senators to play a more constructive role in the consideration of these matters.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Isn’t he just so wonderful! By the way, Senator Abetz was not here when I explained that the Greens support the legislation. He got that wrong, too. The problem with the legislation that this seeks to amend is that it strips away basic rights under Australian law, which concerns people far more learned in the law than I am—though they may not be more learned than Senator Abetz. A former Liberal Prime Minister said, of the basic laws we are dealing with here, that other countries have not found that they need these sorts of powers and other countries have been under much greater terrorist threat and greater threat of attack than Australia. Justice Ron Merkel told the Age:

The move to granting ever-expanding coercive power to the executive arms of state and federal governments, to be exercised behind closed doors and without public scrutiny, carries with it grave risks to the democratic values we are trying to defend ... One must have serious concern as to whether the political hierarchy is deserving of the kind of trust and integrity that the public are entitled to expect of them in administering that power.

One of the things that have failed to happen with this legislation is the adequate protection of the rights of people taken off the streets in secrecy to be questioned by ASIO. I asked a question of Senator Ellison about the ability of ASIO to effectively deny a lawyer to somebody they are about to question through the authority that decides these matters. There is no basis of evidence as to why a lawyer should not be brought in to advise a person held under those extraordinary circumstances. It is simply left to ASIO to convince the judge that they do not trust the lawyer and therefore do not want the lawyer in there. The lawyer will not know about it. The client will not know the argument. There is no opportunity to argue that out. Moreover, while this amendment says, ‘In those circumstances the person could ask for another lawyer,’ they are not told that. They are not necessarily given that opportunity. In fact, this legislation can be used by ASIO to deny a person a lawyer no matter who they ask for—and that is that. That is a very grievous departure from the standards of behaviour the people I have just quoted would expect in the Australia they value.

There is so much more here. You can have your passport taken off you while a warrant is being considered, but if the warrant is not issued there is no provision for your passport to be given back. There are all sorts of mechanisms here for inappropriately treating Australian citizens, because they are under suspicion, without them having proper recourse under those circumstances to the usual checks and balances of the law. The reason the Greens are supporting this legislation is that it is a very weak response to a committee that said these laws, as they stood on the books, ought to be curbed. But this legislation has done very little to address the wrongs of the laws that have passed in the name of fighting terrorism but that effectively have done what terrorists would wish to see—that is, dismantle a little of the liberties and freedoms which we in our country hold so strongly as being part of the ethos of our community and which make us the envy of many people around the world.

It is fair enough to debate the matter in here and to ask questions about it, and one would expect to get answers to the questions, but I know there is no answer to the question of why a lawyer should not be brought in to represent a person under these secret circumstances, out of the view of the public, the media, loved ones—anybody. It is because the intelligence agencies in these circumstances simply want to circumvent the law as we know it, and that is effectively what recent legislation has done. The government supports that; the Greens do not. I agree with Senator Abetz that there is a difference in the approach, and I maintain very strongly that before this recent legislation we had enormous powers for surveillance, interdiction, arrest, bringing to justice and putting out of action any would-be terrorist in Australia. It is curious that the Greens have such a strong position of supporting the norms of Australian delivery of law to citizens and the checks and balances that are there while the coalition has stripped some of those away, we think quite unnecessarily.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

I confess to some confusion in relation to the Greens’ position on this. Not having given a speech in the second reading debate on this matter, Senator Brown now, as is his right, involves himself in the committee stage and has made negative comment after negative comment about the legislation but then says that he supports legislation which, in his words, is a grievous departure from the standards we expect, is inappropriate treatment of Australians without the usual checks and balances and is dismantling the liberty and freedoms that we enjoy in this country. With all those comments, he now tells us that he is going to support the bill. If he is going to support the bill, I invite him and all honourable senators to continue with the debate to get through this bill if there is such a degree of support, which I applaud.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Madam Temporary Chairman, just to help you, because I know that Senator Abetz is not within that range of reach, this is amending legislation, as you know, and we are amending legislation which we absolutely oppose. What I was explaining to the chamber was that the amendments do not go anywhere near far enough. That is a position that the Greens have a right to put here in the chamber and we stand by it strongly.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

It is like having a register of religious organisations.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Senator Abetz is saying something about a register of religious organisations. I do not see that in the legislation, but well may he ramble.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

Thank you, Senator Brown; that has given me an opportunity to raise a couple more matters with this bill. I sought an answer earlier to explain in more detail why the government say that the prescribed authority should not have those documents that this amendment will provide to them. One of the arguments that I guess I have been putting on behalf of the government, for the government are unwilling to engage, is secrecy. The government did not answer that one, although I could perhaps answer it myself. I think there are sufficient protections in the bill such that the prescribed authority cannot range too far in discussing what might go on in the questioning under the warrant without falling foul of the legislation. Another reason is that they might perform a task which is unrelated to the warrant, or to the factual matrix of circumstances that makes up the warrant, to be more precise. They might, in fact, provide more easily discernible tasks. Perhaps, by explanation, you can see how that could be arrived at by looking at section 34HB of the existing legislation, which says:

Anyone exercising authority under the warrant may request the prescribed authority to permit the questioning to continue for the purposes of subsection (1) or (2). The request may be made in the absence of:

(a)  the person being questioned; and

(b)  a legal adviser to that person ...

So they perform this task under the request of the person or persons doing the questioning. 34HB(1) says:

Anyone exercising authority under a warrant issued under section 34D must not question a person under the warrant if the person has been questioned under the warrant for a total of 8 hours ...

It might be seen that they only need the warrant and can then say, ‘Eight hours are up,’ if they have a stopwatch, and then they are required to look at that issue. 34HB(2) says:

Anyone exercising authority under a warrant issued under section 34D must not question a person under the warrant if the person has been questioned under the warrant for a total of 16 hours ...

Once more, you get a period where it might be argued—although the government has not argued it—that they do not require the circumstances that these amendments sets out to be able to determine those things. They have a watch, so they can see when eight hours are up or when 16 hours are up. They can then consider the legislation in that light perhaps without considering the factual matrix.

But when you look at (4), I am not convinced—perhaps the government can shed light on it—whether or not they are, in the language that lawyers like to use, cutting off their nose to spite their face. It says:

The prescribed authority may permit the questioning to continue for the purposes of subsection (1) or (2)—

so it might be relatively easy to ascertain (1) or (2), as I have indicated—

but only if he or she is satisfied that:

Now here is the nub:

(a)           there are reasonable grounds for believing that permitting the continuation will substantially assist the collection of intelligence that is important in relation to a terrorism offence;

Now hold that; they will have to then look at the circumstances, look at the questioning that is under way, look at the face of the warrant—not the facts and circumstances that underpin it but only the face of the warrant—and, under that scenario, they would have to conclude whether there are reasonable grounds for believing that permitting the continuation would substantially assist the collection of intelligence. In fact, what you might find is that you have left yourself short, because on the face of the warrant itself it may not be sufficient to assist the prescribed authority to come to the conclusion that there are reasonable grounds for believing, and therefore they do not allow the questioning to continue.

If the broader information, as this amendment seeks to put, is put before them and they understand the contextual setting—the questions that are being asked in that contextual setting of the facts and issues that support the warrant—then they might come to reasonable grounds. Be that as it may, it seems that you are asking the prescribed authority not just to make a decision about times and about functions in terms of what their job is but also to look a little further and to permit important issues in relation to a terrorist offence, and to make that decision. So you are now asking the prescribed authority to do more than just a perfunctory role—notwithstanding how important that is—you are now asking them to look a little deeper at what is going on in the setting. If you look at (b), it says:

(b)           persons exercising authority under the warrant conducted the questioning of the person properly and without delay in the period mentioned in that subsection.

And (5) states:

(5)           The prescribed authority may revoke the permission. Revocation of the permission does not affect the legality ...

So what we really have, tied up with their role, is the discretion, and they have to exercise that discretion on reasonable grounds, for believing that permitting the continuation would substantially assist the collection of intelligence. That may not be apparent from the line of questioning from the questioners. But it might be apparent if the facts and statements that underpin the warrant were available to the prescribed authority. Without that, you might be leaving yourself short—where a prescribed authority might come to the conclusion that the line of questioning is not getting anywhere. It might seem irrelevant to the warrant; it might seem irrelevant more broadly. Without that information that is currently before the issuing authority, the questioning might end, because the prescribed authority may not come on reasonable grounds for believing that it should continue. I would ask you to look at that and provide me with a view.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

Basically two issues have been raised by the honourable senator opposite. With respect to the first one, I understand that Senator Ellison had already given quite an extensive answer to it. I remind the honourable senator that the government does not consider it appropriate for ASIO to give the prescribed authority a copy of the full statement of facts and grounds on which the warrant is based. The prescribed authority does receive a copy of the warrant prior to questioning commencing. Combined with his or her role in oversighting questioning, this is sufficient for the prescribed authority to fulfil its role in supervising the proceedings, including determining whether the continuation of questioning is appropriate.

I indicate to Senator Ludwig that the role of the prescribed authority is not a ‘perfunctory’ role, as I think Senator Ludwig described it. It is a very serious and important role in that it needs to ensure that all the legislative safeguards have been met and it has to indicate to the subject the effect of the warrant and the rights et cetera. To describe it as a perfunctory role is, I think, to do the role of the prescribed authority a disservice.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

That did not answer my question, though. I was referring to the role very guardedly. We can call it ‘process driven’. If you had heard my speech on the second reading, and if you had been here when Senator Ellison was here, you would have understood that I have indicated that they are very important roles—both of them. I was simply trying to reduce the argument down so that you might be able to understand it, but it seems that you are stuck on words and fail to understand the argument that I am putting. I will go back to the particular points. It might seem at first blush that the role of the prescribed authority is, as you have indicated, an important role to make sure that all of those safeguards are in place and that they might be reasonably identifiable. But they relate to the operation of the legislation vis-a-vis the person being questioned, vis-a-vis the questioners, and how that proceeds. They are process matters.

What I am arguing is one step further than that. You may have an argument, Senator Abetz, that at that point the prescribed authority does not require any more than simply the warrant to undertake those duties. That would be the sensible position, except for subsection (4) under 34HB, which gives a very broad discretion. It seems that this is what you are doing and, if that is so, I am happy for you to state it. You are saying that, in respect of the prescribed authority, they will only have the warrant—and of course listening to the questions that might be asked which may in fact be a line of questioning where it is not easy to discern whether it would provide or substantially assist the collection of intelligence that is important in relation to a terrorism offence, or they only have to rely on the questioner to tell them that it is important. That will not in itself allow the prescribed authority to come to the conclusion that there are reasonable grounds for believing that permitting the continuation would substantially assist. That is an independent exercise of their ability to not only read the warrant and listen to the questioning but also understand the underpinning of that warrant—in other words, the statement of facts and issues that make up that warrant. In that way, they may be able to discern whether there are reasonable grounds. If that is not the ability you want to give to the prescribed authority, then say so and I will hold my tongue. I am simply pointing out that, if you think the prescribed authority does not have a discretion where the facts and circumstances may assist, say that.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

The prescribed authority has a very broad discretion in relation to how it will inform itself on this and it can seek advice as to whether or not questioning should be continued after the eight hours. How that judgment call will be made in any particular circumstance is going to be based on the judgment call of the prescribed authority at the time. That is why we appoint these people to make those judgment calls—people who are trained judicially, who hopefully have a good judicial background. We clothe that person with the authority to make these judgment calls rather than trying to prescribe all potential circumstances in legislation. That is why we have people such as prescribed authorities to make these decisions and calls. At the end of the day, we trust the prescribed authority’s capacity to make such a judgment.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

So I am right in saying that you are not going to give them the facts and circumstances to determine how they would exercise their judgment based on their experience. If that is the position, then that really ends the debate. That is what you have decided that they will not have. Bear in mind that—and this is the point I made right at the beginning—it might mean, on the information that is provided independently to the judge, who can make up their own mind about these things, that they come to the conclusion on reasonable grounds, without the statement of facts and issues, that they cannot form a view for believing that permitting the continuation would substantially assist the collection of intelligence that is important in relation to a terrorism offence. Therefore, the questioning has ended and you have lost the ability for questioning that person under that warrant.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

I think there is basic agreement with what Senator Ludwig was putting. As I understand it, the prescribed authority will be able to hear arguments put by ASIO as to whether the questioning should be continued. In relation to the statement of facts, as outlined by Senator Ludwig, that is in fact the government’s position.

Question put:

That the amendments (Senator Ludwig’s) be agreed to.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

by leave—I move the remaining amendments (5) and (6) on the opposition’s sheet in my name:

(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”.

I do not intend to take a long time on this debate, particularly in that I made Labor’s position clear during the second reading debate. The Parliamentary Joint Committee on ASIO, ASIS and DSD similarly provided a view that it is really untenable for this government to argue for a sunset provision of a duration which would put it really beyond the pale. It is a sunset provision where, even if you were in the Northern Hemisphere in Alaska or in the Southern Hemisphere in Antarctica, you would say they have endless summers but also endless winters. But this sunset clause is beyond the pale.

Three of the 113 submissions put to the committee argued that a sunset clause should be removed from the legislation. I think that that in truth belies what the government’s motive is in making a sunset provision of this length. Of course, for those who might not know who those three are or who could not guess, they include ASIO, the Attorney-General’s Department and the Australian Federal Police. The argument which the committee concluded in recommendation No. 19 was for a sunset clause of 22 June 2011. I will give the government an opportunity once more to reconsider that. It is a matter that the opposition feels quite strongly about and that the government should in fact pick up. I know they will not, but I will give them the opportunity to test the numbers one last time before this bill is finalised.

It is not only a matter of principle. When you look at the period that they are seeking to have imposed on this, I know where the numbers are going to lie—the government will have the numbers—but it is worth ensuring that they can marshal their forces rather than let this slide, because it is important. When you look at legislation that has come before this parliament where we have, as committees, recommended provisions for them to be reviewed, to be looked at, to be sunsetted, these are matters that committees do not suggest lightly. They consider them in detail and attach them to reports for governments to pick up. I have to say that the history of this government, although I might complain about it on a range of other matters, is that it has picked up many sunset provisions or reviews that have been recommended in the past by various committees.

But in this instance they remain obstinate. They do not want to pick up a reasonable sunset provision because, in truth, their position is one where they do not want a sunset provision at all. This puts it in that frame—the frame of 2016. If you look at the extent and nature of the powers and the secret nature of their use, scrutiny of the most rigorous kind must remain in place. It must be there, sitting on their shoulder, overseeing their work so that they know at some point their work will come to be scrutinised. As the committee said at paragraph 6.46:

As they should not be permanent and should be scrutinised as thoroughly as possible, it is the Committee’s view that the sunset clause must remain.

The committee did acknowledge that a period of three years is brief, and that is why the committee made recommendation No. 19. But it looks like this government is not going to wear that; it looks like this government is going to remain and turn what could only be called an insensible ear to the really powerful arguments that were provided by the joint committee, which for those who are following this debate are in paragraph 6.23 of their report. But there are other bills to get through, so I will not delay this any further. I commend the amendments to the Senate.

Robert Ray (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Minister Ellison, in the closing of the second reading debate, indicated that it was not mandatory for a government to accept the unanimous report of a committee that contained its own members. I must say I agree with that. But on this particular occasion we made 19 recommendations, some of which the government has rejected and we have accepted their reasons for rejecting them. But I do not think any member of the joint intelligence committee has found the reasons for rejecting our 5½-year sunset clause at all convincing. We did not just say, ‘Oh well, we’ll put this recommendation in because it’ll juice up the report or something.’ We gave this considerable attention. We considered it in detail before we recommended 5½ years. I noticed that the 10 years, if we follow the normal three-year election cycle, will mean that this bill expires around the time of the federal election in 10 years time. Someone has not thought that through too well. We thought it through. We had the bill expiring halfway through a term.

Minister Ellison earlier on gave two reasons for the government rejecting this, without backing up either reason. The first is that he says it is resource intensive to have these reviews and sunset clause. How resource intensive is it? I would like that quantified. I would like to know. What expense are we going to go to to have this very, very strict and robust legislation reviewed every 5½ years? At what cost? Just remember: ASIO is growing in size from 600 to 1,800 in a three- or four-year period—a massive increase in funding. By the way, ASIO can find $320 million to build a new building in the next two years—but it cannot find $50,000 or $100,000 to devote to a review of this crucial legislation. This ‘resource intensive’ argument is absolute, arrant nonsense. It is as if they cannot chew gum and walk at the same time.

It is a responsibility of a great institution like ASIO to be able to come forth to parliamentary committees and be scrutinised and to justify their actions. Most people know that we do not cross-examine ASIO in any depth at estimates committees, that the joint intelligence committee, on behalf of the parliament, carries out these duties, usually behind closed doors. They are offered these privileges, but one of their responsibilities should be to justify themselves in front of this parliament when necessary. Every 5½ years is hardly onerous. So, when we get the ‘resource intensive’ argument run, we know it is just bilge and garbage.

Sure, triple the size of ASIO! How much is that costing? I am not opposing it. But, over a three- or four-year period, it is costing a motser. We get approval to extend the ASIO building and then suddenly, in the last budget, we scrap it: ‘Oh no, we won’t extend it. We’ll build a purpose-built $320 million building.’ Again, I can see some sense in that. But, when the resource-intensive argument is used, it is absolute nonsense.

Then there is the second reason: ‘This interferes with operational priorities.’ Well, when and where has it interfered with operational priorities? Is this meant to imply that, because the parliament scrutinises ASIO, ASIO cannot fully do its job? And, therefore, if there is a terrorist incident, oh no, guess who is guilty? We are, for reviewing their legislation every 5½ years and distracting them from their job! It is patent, absolute nonsense.

Now, it is the case that not every piece of legislation should attract a sunset clause and, at times, a sunset clause has been used as a device to get people off the hook. This is not one of those pieces of legislation. This is legislation that says citizens of this country not suspected of a crime forfeit their right to silence. Modern times demand that this power be ascribed to ASIO and the Federal Police at the moment; we do not object to that. This legislation says that you could face a five-year jail term if in fact you refuse to answer questions. It says that you could be detained for seven days and questioned for 24 hours—far more than anything that is reflected in the Criminal Code. You can do all that, but don’t be scrutinised!

Of course, a sunset clause has a salutary effect on the behaviour of the organisation it applies to. ASIO will know to continue its so-far exemplary performance in the execution of this legislation when it knows that at some stage not too far into the future—5½ years away—this legislation will cease to exist unless the parliament restores it. A 10-year sunset clause is basically nonsense. It is not unique: it is applied to other legislation and it is equally objectionable there.

The real problem here is not just that the unanimous and considered decision of a parliamentary committee has been rejected but also that the reasons for doing so are so inept, so unconvincing. If there were solid and reasonable grounds, we would at least consider them, as we always have in this regard—but not the reasons you came up with. Firstly, you say it is resource-intensive for poor old ASIO—sloshing with money, massively increasing its staff, getting a shiny new building worth $320 million. I do not find that at all convincing. Secondly, you say it may interfere with operational priorities. What does that mean? I do not expect the minister at the table to come out and say, ‘We’ve got this or that operation going and it may interfere with that.’ What it really says is that ASIO must be a very fragile organisation if it cannot respond to one committee inquiry every 5½ years.

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

What is at issue here is the fact that, under the government’s proposal, this legislation will be reviewed by 22 January 2016. The provisions in division 3 of the ASIO Act will also, of course, cease operation in 2016—in fact, by 22 July 2016. There will be no effective scrutiny of these ASIO powers before that time. There will be no effective review of these ASIO powers before 2016. There will be no accountability in relation to these ASIO powers before 2016. And there will be no public transparency in relation to the use of these powers before 2016.

The question that the minister at the table is unable to answer, the question that Mr Ruddock as the responsible minister is unable to answer, is: what is the justification for a 10-year sunset clause? In fact, why have a sunset clause at all? I remind the committee that the PJC itself said in relation to these powers:

… the powers … should not be seen as a permanent part of the Australian legal landscape.

The truth is that, without review, without accountability, without transparency and without scrutiny, that is precisely what will happen.

Some of these powers, particularly the power to detain, have not actually been subject to any review at all because they had not been used at the time of the PJC review in 2005. They had not been used. So we will go from 2005 to 2016 without any examination or review of these powers. Can anyone seriously say to this committee or to the Australian community that that is a satisfactory situation? Of course it is not. It is a Clayton’s sunset clause. It is the sunset clause you have when you do not have a sunset clause at all. It is absolutely indefensible, and the amendments that Senator Ludwig has moved on behalf of the opposition ought to be agreed to by this committee. They are moderate and they are responsible. They are a minimum in the circumstances, for a minimum amount of scrutiny of the operations of these very serious, very extensive new powers that ASIO has.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

I want to put on the record the Democrats’ strong support for these amendments. I agree with virtually all that Senator Faulkner and Senator Ray have said. Perhaps the only bit on which I would differ is this. Senator Ray said that all of these very serious, very strong powers—as he rightly described them—are necessary in the current age, but of course the Democrats do not believe that these powers are necessary. That is why we did not support the initial legislation when it was passed by this Senate, although I do acknowledge the very significant improvements that were made to the historically bad, as Senator Ray described it, legislation that was initially put forward. It is a good reminder to this chamber, when considering this amendment, of the very significant value of actually looking at legislation. Even though the Democrats did not support the final product, we did support the significant improvements that were made to the initial product.

It is a reminder of what has been lost and what will continue to be lost if government senators do not think seriously about the opportunities for improvement with amendments such as these. This is a very simple but very important improvement, an improvement in the legislation itself. It is also an important mechanism to enable the government and the parliament to make necessary improvements in five or six years time rather than in 10 or 11 years time. So even though the Democrats do not support extending the existing powers, because we did not support the initial legislation—our position is consistent with regard to that—we still certainly believe that, if they are to be there, they should be reviewed sooner. Indeed I suggest that five or 5½ years is still a pretty fair distance away for such very major powers.

I imagine the committee, which Senator Ray is a member of, landed at 5½ years as some sort of middle ground—he explained the reasons in his earlier contribution. It is a reasonable position which even the most gung-ho member of the government should be able to comfortably support. It was not an ambit claim; it was not something that pushed things to the outer limit of what should be expected. It was a very moderate recommendation supported by all members of the committee. For those reasons it is particularly appalling and galling that the government rejected it for such flimsy reasons. It would be equally appalling and galling if not a single member of the coalition in the Senate acknowledged that and voted in support of this very moderate amendment.

I think it was in Senator Ludwig’s initial contribution, possibly way back in the second reading debate, where he gave examples of other sunset clauses in various types of legislation. If I remember rightly he said there is a similar sort of sunset clause in the British legislation, which is much shorter again—a year springs to mind. I hope I am not misquoting him on that.

Robert Ray (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

One year.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

One year. So, as I understand it, the UK legislation, which, broadly speaking, is in most respects less hardline across the board than the Australian legislation, has a sunset clause of one year. Here we have the government trying to insist on a sunset clause of 10 years. It is a pretty significant difference for what, as all Labor speakers have said—and I expect most government speakers would acknowledge—is very hardline legislation.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

Senator Abetz interjecting—

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

I take Senator Abetz’s interjection about how terrible it is that people would be ventriloquists’ dummies—

Ross Lightfoot (WA, Liberal Party) Share this | Link to this | Hansard source

I think there should only be one person talking, and that is the speaker on his feet.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

I would hope that government senators themselves are able to prove they are not ventriloquists’ dummies by showing some capability for reason and individual thought in relation to this amendment. They would be following the advice of their own Liberal members on the Parliamentary Joint Committee on Intelligence and Security in supporting this amendment, which is totally consistent with the extremely moderate recommendation put forward by the committee.

To reaffirm the Democrats’ support for this amendment I will make one further point. Senator Ray certainly knows—I have mentioned it a number of times—that the committee that oversees ASIO, the intelligence committee, does not have representation from the crossbenches. He has explained his view about why that is reasonable, and he has a fair point: it is in the legislation. That certainly explains why it is there but not why it is justifiably in the legislation or elsewhere. He has put forward a view, and he has a reasonable point, a defensible position, with regard to that. Nonetheless, it is appropriate to point out that it is a committee that does not have non-major-party representation.

As was pointed out, ASIO in effect cannot really be scrutinised to any great degree by any of the other committees. I have been on one or two committees where we have had ASIO before us for various matters and, really, it is not worth the bother. Basically they just sit there and say, ‘We cannot comment on that for operational reasons’. You ask 20 questions and you get that answer. It pretty much wastes everybody’s time and everyone feels frustrated and irritated. So that is the only committee that can really scrutinise ASIO in any significant way. I have to take them on faith that they do it in a significant way because we do not know as we are not on it and most of what they do when they scrutinise is behind closed doors—but I am sure they do a good job with regard to that.

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

But you can read their committee reports, can’t you?

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

Yes, we can read the reports. They are usually quite well-argued reports, I might say. In fact, every one I have read has been fairly well argued, even when I have disagreed with it. Nonetheless, that does not substitute for being on the committee itself. I simply wanted to emphasise that point. I did not want to divert to having a big whinge about it but I wanted to indicate that the mechanisms for scrutiny of ASIO that are there do have significant limitations. Again, as all senators would know from any committee they have been on, when you take evidence in camera, that in itself immediately puts a very problematic limitation on what you can do with that evidence.

This parliament has basically given ASIO that privileged position for many years. I am not suggesting that should be changed, but it is an extra reason why giving them carte blanche for a decade in relation to powers which are very extreme and without review is simply extraordinary. In my view, it is unjustified but, obviously, it is justified in the view of the majority of this place. Again, I ask government senators to recognise that even their own members on that committee recognised that and put forward a very moderate—and I think too moderate—recommendation for a shortened sunset clause of 5½ years. To reject even that shows that, once again, this government has no commitment to accountability, no commitment to transparency and no commitment to some of those fundamental building blocks of what used to be called liberalism. It is still called liberalism except in Australia, where you cannot use the word because people think you support legislation like this if you call yourself a liberal. I read from time to time that there are meant to be one or two liberals still left in the Liberal Party. This is an opportunity for them to demonstrate that.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

More than there are democrats in the Democrats.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

If there are more than four liberals in the Liberal Party, I look forward to seeing five of them or more crossing the floor and voting for this moderate amendment. It is a very serious issue. In all seriousness, these are incredibly strong and enormous powers that apply to everybody in Australia. It is a circumstance that anybody in this country can inadvertently find themselves caught up in for all sorts of unexpected reasons. It is very easy to think, ‘It is not going to apply to me because I do not get involved in dodgy activities with terrorists,’ but any of us who have bothered to look at the legislation even in the smallest degree know that any sort of association with somebody else who might have information that ASIO might want to get—even if it is just attending the same function as them—could be a trigger for somebody to be caught up by this sort of legislation, because it applies to everybody, including people who are not suspects. That sort of situation is something that needs to be scrutinised with the greatest degree of precision, and the overall examination of how those powers are used as a whole needs to be undertaken very frequently and the system must be continually assessed to see whether it is operating appropriately. I think it is a gross dereliction of duty by this government to simply put any sort of review or sunset clause out into the never-never.

I think it is a fair bet that, because of the length of time senators serve in the Senate these days, probably close to half the senators currently serving here in the Senate will not be here in 10 years time. To expect the Senate of that day, which will have very little institutional memory left of the rationale behind the putting in place of this legislation in the first place, to be considering a review is really devaluing the whole purpose of having sunset clauses, because the continuity of the people who were involved in it at the time will be lost. I doubt very much whether most of those participating in this debate will be here in 10 years time. I do not expect I will be, although I am looking forward to the people of Queensland showing good sense and giving me another term at the next election, along with Senator Moore, whom I noticed got preselected at the weekend, so there will be a few of us there.

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

Do you want to put money on it?

Robert Ray (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Three to one and we will give you our preferences!

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

It would be an inside bet, and we cannot have that. Even if I did get re-elected, I do not think I would go for another shot and be back here in 10 years time. It is an incredibly long period of time in a political context and in a legislative context. I do not know if it is a record for a sunset clause, but I think it probably is. I do not know if anyone has mentioned that. I could not think of many other examples where there has been a sunset clause of more than 10 years. Why would you bother? That is another fairly damning indictment of this—that is, to have what is probably the longest sunset clause ever on a piece of legislation that is probably one of the most serious ever in the restrictions it places on the freedoms of Australians. It is a very poor match in terms of historically draconian legislation and a historically long sunset clause. It is a poor situation. I urge once again that at least one coalition senator, if not more, recognise that situation and support the amendment.

Robert Ray (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Through you, Temporary Chairman: you are probably right, Senator Bartlett, that most of us will not be here. Of course, I do not mean you, Temporary Chairman Lightfoot. You may well be here then.

Ross Lightfoot (WA, Liberal Party) Share this | Link to this | Hansard source

Thank you for that assurance, Senator Ray.

Robert Ray (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

That is all it is. I cannot deliver anything else. In an otherwise splendid contribution from Senator Bartlett, he repeated one piece of nonsense that really has to be addressed. He indicated that someone may be at a function and may know something even though they are innocent and may be subject to one of these warrants. I have to say to you, Senator Bartlett: read the legislation. It is only when all other alternative methods of collection have been expended that these warrants kick in. What would happen in the circumstances you have described is that ASIO would come knocking on the person’s door, have a cup of tea with them and have a discussion. It is only when they suspect the information has deliberately not been divulged that a warrant would be issued. It simply does not happen that way that, just because someone has some information by being at the same function, they are suddenly subject to a warrant. You have to convince the Director-General of ASIO, the Attorney-General and the issuing authority that all other methods that could be used have been used. In those circumstances that you outlined, it certainly would not have occurred.

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

That is now. It was not the case when Daryl Williams QC was the Attorney-General.

Robert Ray (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

It was not in the original bill, you are right there, but we have traversed that ground once today. I think that is enough. You traversed it so well; what else could I say?

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

I rest my case.

Robert Ray (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

To assist the committee, my specific questions are: firstly, what resources were involved in the joint intelligence committee review by ASIO, Attorney-General’s and the Federal Police? If the ‘resource intensive’ argument is to be sustained, this committee at least deserves to know what it cost. So tell us what it cost in money, staff hours, intellectual capacity, psychic’s salary or whatever else you like. I would like to know. Secondly, with regard to the argument that it could interfere with operational priorities: has this occurred? I am not asking for the specifics, but has it occurred? Who has asked the question and who has checked whether this is not just some bogus, silly argument put forward and that it does exist in reality?

Thirdly, why was it good enough three years ago to have a sunset clause of three years but now it is 10 years? What has changed in the three years? Was it mere opportunism and lack of principle that meant that three years ago the current government adopted three years, or is it that with a Senate majority and the hubris that follows they believe they can do whatever they like and the principles that they stood for before are no longer extant, as they say in the classics? Do they no longer exist because the government say, ‘We do not actually want a sunset clause, so we will chuck in 10 years and that is off our plate for 10 years’? I hope that is not the case. I hope the commitment to a sunset clause three years ago by the coalition government was genuinely held and was offered and accepted in negotiations on the basis that it was a sound principle. If that was the case, why does the sound principle no longer apply?

Senator Faulkner made a very valid point. We have reviewed the questioning regime. We have affirmed that we believe it is in accord with the legislation—not just the letter of the legislation but the spirit of the legislation. We have had no chance yet to assess whether the detention regime will work, and will work properly, because, fortunately, no-one has been detained. But if in the next few years people have been, to say that we will only review that regime 10 years hence does not seem to be very sensible to me.

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

It could be in place for 13 years.

Robert Ray (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

As you say, Senator Faulkner, it would have been in place for 13 years without that aspect being reviewed. It is probably the one that has generated the most heat. The ability to detain someone who is not necessarily suspected of a crime for seven days, question them over 24 hours and almost keep them incommunicado is a pretty drastic step in the way we construct our legal system. When you look at the treatment of people suspected of serious criminal offences, you see there are far more protections than there are in this detention regime. If, for some reason, a new Director-General or a new Attorney-General were to really get the bit between their teeth and decide that the detention regime is the way to go, there would be no review or assessment for 10 years.

We do have protections. The Inspector-General of Intelligence and Security has been written into the legislation. That will be helpful, no doubt, in any of these particular processes. But, ultimately, you cannot beat parliamentary scrutiny. For all the foibles and faults of parliamentarians, for all the egotistical trips that they go on and for all the political opportunism that exists, it is still one of the safest and best methods of scrutiny. In an adversarial political system, it promotes transparency and it promotes honesty. To, if you like, delegate that away to an Inspector-General, Attorney-General or somewhere else away from the parliament is not wise. I have to say that nature abhors a vacuum. If you create a vacuum in this area then those very questions that are not asked in open committees and estimates committees will now be asked there, rather than in the more conducive and constructive area of the joint intelligence committee. That will inevitably happen because public scrutiny will be regarded as having been reduced. I think that is a major pity in these particular circumstances.

We are not here alleging abuse and misuse of powers by ASIO. We are not alleging that, but if we do not take into account the potentiality of abuse and we do not put systems in place to scrutinise it and deter it, it may well occur into the future. This sort of legislation has created enormous ripples in our community. You can just start to detect now that people are becoming more comfortable with it, that the scare campaigns around it are starting to slide off and that people have moved their attention to other areas. It is such a pity that we are dealing with such an intractable government on this one issue, when we could see off this legislation. We accept our defeat on the last amendment. We do not agree with it but we accept it. What a pity we have to send this legislation on to the statute books with this massive weakness in it.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

I will try to be brief in indicating that the government opposes the amendments for the reasons that were outlined by the Attorney-General in the other place and by Senator Ellison in his summing-up speech. Suffice to say that Mr Ruddock, on 11 May 2006 in the other place, indicated that 10 years was chosen as a compromise—

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

Between what?

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

Senator Faulkner, I take your interjection. I accept that the Labor Party spoke on this with some commitment, as did Senator Bartlett. It is interesting to see that it is the Labor Party and the Democrats who are genuine about this debate and do the long hard yards in relation to these issues. Another minor party that always trumpets itself as being so very concerned about these issues once again is absent from the chamber. Having said that, I take Senator Faulkner’s interjection. The 10 years was a compromise. The agencies were of a view that there should be no sunset clause. The committee considered 5½ years as an appropriate sunset clause period.

Just to correct the record, as I understand it the UK does have a one-year sunset clause, but that is specifically and only related to the control order regime. It is the only sunset period in the UK counter-terrorism legislation. It is very limited. So the assertions being made by Senator Bartlett, egged on by Senator Faulkner, do not necessarily withstand a great degree of scrutiny. Nevertheless, I accept that the Labor Party have very strong views on this, which they expressed in the other place and also in this place. I think the UK situation is in fact more open-ended as a result.

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

Our amendment applies to division 3, part III. You know that.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

I know what your amendment applies to. I am told that the one-year sunset clause only applies to the control order regime in the United Kingdom. Honourable senators would be aware that our other counter-terrorism legislation has 10-year sunset clauses. We have had debate about the 10-year sunset clauses before. I fully accept that the opposition have a strong point of view on this, but the Attorney-General and the Minister for Justice have indicated that the government strongly but respectfully disagree. As Senator Ludwig indicated, there will undoubtedly be a vote on this matter. I suggest that that vote be taken as all the relevant issues have been canvassed.

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

Are you going to answer Senator Ray’s question?

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

Resourcing clearly is one of the myriad of issues that are taken into account. At the end of the day it is ultimately the compromise position that, if we had gone for 5½ years, it clearly would have been against the advice of the agencies involved. Going for 10 years, we of course are still going against the advice of the agencies and against the suggestion of the parliamentary committee. That is what so often happens when a government confronted with the reality of government has to strike compromises. On this occasion, clearly the agencies and the opposition are not happy with our compromise. They would argue that no sunset clause is required, and the argument on the other hand is that the sunset clause ought to be for a shorter period of time. I can understand all the arguments and, for better or worse, the government has struck on a compromise of 10 years. That is the government’s position. I do not think the Attorney or the government will be changing their views in relation to that, given that the 10-year sunset clause regime has found its way into other parts of our counter-terrorism legislation.

Question put:

That the amendments (Senator Ludwig’s) be agreed to.