Anthony Byrne (Holt, Australian Labor Party) Share this | Hansard source

In rising to speak to the ASIO Legislation Amendment Bill 2006 today, I want to commend the members of the now Parliamentary Joint Committee on Intelligence and Security, of which I am a member, on its review of division 3, part III of the ASIO Act and the report it produced. In the course of that inquiry, the committee arrived unanimously at a series of 19 recommendations which it believed would strengthen the legislation and enable ASIO and the government to exercise their powers more effectively. It has been part of a fairly long journey to get this piece of legislation right.

I have found it quite instructive to reflect on the history of this bill. I refer here to a Bills Digest which drafted an outline of the legislative history of division 3, part III. It might be worth while for the House to consider this history and look at how this legislation started, because it is quite interesting. The legislative history says that division 3, part III, which relates to ASIO’s questioning and detention powers, was inserted into the ASIO Act as a result of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003. The division adds to the suite of exceptional powers that parliament has entrusted to ASIO. A bill to add division 3, part III to the ASIO Act, the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, was first introduced into the House of Representatives on 21 March 2002 as part of a package of antiterrorism legislation.

When the bill was first introduced, it aroused some community controversy. The 2002 bill enabled incommunicado detention of nonsuspects, both adults and children, for up to 48 hours, with potential for indefinite renewal of the warrants under which they were held. Detention warrants were to be issued by the executive, not by a judicial officer. Contact with a lawyer was not guaranteed. There was no provision for the legislation to be subject to review or have a sunset clause. In 2002, the PJC described the bill as ‘the most controversial piece of legislation ever reviewed by the committee’. The 2002 bill was referred to the PJC and, together with other antiterrorism bills, it was also referred to the Senate Committee on Legal and Constitutional Affairs. Numerous legislative amendments were recommended by both committees.

An amended 2002 bill passed the House of Representatives and was further amended in the Senate. The House of Representatives accepted some of the Senate’s amendments but negatived others that the Senate continued to press. As a result, the bill was laid aside, becoming one of the potential double dissolution triggers at the time. There was a lot of politics surrounding this. We were told that this legislation had to be passed in the interests of national security.

A second bill, the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, was introduced into the House of Representatives on 20 March 2003. This bill was finally passed, after further amendment, on 26 June 2003 and commenced operation on 23 July 2003. During its passage through parliament, amendments were made which to an extent refined and clarified the legislation and ameliorated some of its more draconian aspects. Among other things, amendments were made affecting the legislation’s application to children; the maximum period of detention was set at 168 hours; provision was made for protocols to govern the custody, detention and interview process; criminal penalties were introduced for officials who breached safeguards; ASIO was required to include warrant statistics in its annual report; warrants were to be issued by judicial officers; the PJC was tasked with reviewing the legislation; division 3, part III was sunsetted three years after its commencement—this was in the wake of the Bali bombings and September 11; and the requirement that a subject’s lawyer be approved by the Attorney-General and security cleared was removed.

Division 3, part III—this particular legislation again—has been amended five times since the passage of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003. Major amendments were effected by the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003. This act extended from 24 hours to 48 hours the maximum period of questioning when a subject uses an interpreter and inserted new non-disclosure offences that operate during the currency of a division 3 warrant and for two years after the warrant has expired.

Referring to the Bills Digest again, as things stand, with the above provisions in mind, division 3, part III can be summarised as follows: it enables ASIO to obtain a warrant from an issuing authority that allows adults who are not suspected of a terrorism offence but who may have information about terrorism activities to be questioned for extended periods. They can be detained if there are reasonable grounds for believing that they may alert someone involved in a terrorism offence, may not appear for questioning or may destroy or damage evidence. The statutory regime also applies to children aged between 16 and 18 years if they are suspected of involvement in a terrorism offence. Questioning takes place before a prescribed authority who oversees the process. The language in the Bills Digest is quite interesting. It says that this regime is unprecedented in Australia and arguably in the common-law democracies with which Australia is often compared—the United Kingdom, Canada, New Zealand and the United States.

The issue we face is that this is not a mild piece of legislation; it is a piece of legislation that has been framed in the aftermath of Bali and September 11. I agree with the intent of the legislation; we must do all we can do within our powers to prevent a terrorist act from occurring on our soil. It is not the intent of this legislation I have a problem with; it is the application of it. It does not apply the powers effectively. It diminishes the capacity of an authority like ASIO to exercise its powers effectively. If the legislation is not correct, it can also allow a legal challenge through the Federal Court to not permit that evidence to be used—and that is an issue that concerns the committee unanimously. These 19 recommendations that were put forward to the government for response were shaped with that intention in mind—to strengthen the legislation to enable the execution of questioning and detention warrants in a way which would not compromise the agency, the people being questioned or the government. That is why we as an opposition have concerns with two components of the government’s response that have been enacted in the legislation which relate to prescribed authorities and the sunset clause.

Referring again to the Bills Digest, a prescribed authority’s functions and powers include:

• explaining the warrant to the subject of the warrant, informing them of what the warrant authorises ASIO to do, their avenues of complaint and judicial review, and who they are permitted to contact
• directing that a person be detained
• deciding that an interpreter should be provided to a person who is appearing for questioning
• deciding whether questioning is to continue under the warrant and setting breaks between periods of questioning
• directing that a person be released from detention once further questioning is statutorily prohibited
• authorising the police to conduct a strip search on a detainee
• providing a reasonable opportunity for a person’s lawyer to advise them during breaks in questioning, and
• directing that a person’s lawyer be removed if they are disrupting questioning.

The committee unanimously suggested that:

• ‘the supervisory role of the prescribed authority be clearly expressed’—

and the government has agreed in part with this 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’.

In light of the description of the prescribed authority’s functions, the fact that the prescribed authority is invariably a retired judge and the information is generally provided to the issuing authority before the warrants for questioning are issued, I do not understand why the government would say that this is not relevant and that this information should not be provided to the prescribed authority. When the committee was examining these issues and taking testimony from people who had had experience with the process, that inconsistency was one of the key issues raised. Some concern was raised in the minds of some members of the committee that, if there was not a capacity for the prescribed authority to be making judgments based on the full facts, this could be used if it were taken to the Federal Court.

What we are about in this committee is making sure that this legislation works, so I would ask the Attorney-General or, in his absence, the Attorney-General’s Department, to consider this: why is it relevant that this information be granted to the issuing authority but not to the prescribed authority, who sits in on these questioning periods and potentially sits in on the detention periods, because the detention power has not been utilised at this point in time? As I have said before, no-one in this place and no-one on that committee contested the fact that we need to obtain that information, if the body believes it has the information, to interdict or prevent a terrorist act. That point is not in dispute. But what is in dispute in this place—and this is why the opposition is putting these amendments—is how to make sure this legislation can be exercised effectively.

The other issue that we will be moving an amendment on is the review and the sunsetting. I would like to refer to the Bills Digest again with respect to this particular issue. It says:

Division 3, Part III ceases operation on 23 July 2006. Provisions for review and sunsetting were inserted into Division 3, Part III as a result of the PJC’s inquiry into the Australian 2002 Bill. In proposing a sunset clause in 2002, the PJC said:

It will be up to the Government of the day to argue for the continuation of proposed Part III, Division 3 of the ASIO Act which will be inserted by the Bill. The timing of the Committee’s review will ensure that the Government could, if necessary, prepare and introduce a replacement Bill when the relevant part of the Act expires.

In evidence given to the PJC in 2005, ASIO, the Attorney-General’s Department and the AFP argued against any further sunsetting and recommended that the questioning and detention regime become a permanent part of Australia’s counter-terrorism laws. According to these agencies, concerns about how the powers would be used have proved to be unfounded, valuable information has been obtained and concerns about terrorism are unlikely to abate.

I will make a point about that, particularly as to the exercise of the powers. Does it not occur to the Attorney-General that having a review three years after these extraordinary powers have been implemented actually aids the public’s confidence in the fact that these powers are being exercised? If the intent of the authorities is that there should be no sunset clause, how does that inspire public confidence in the fact that there is going to be appropriate scrutiny, an overview, of what are clearly extraordinary powers given to an agency in light of a terrorist threat or a perceived terrorist threat? You cannot have that as a permanent part of the landscape. You cannot have a permanent cold war.

In effect, judgments like this have got to be made on the basis of intelligence at the time. That is why the committee unanimously put forward a five-year sunset clause. Whilst we have an absolute commitment to ensure that these questioning and detention powers are used to interdict or prevent terrorist acts, we also have to be mindful of the fact that the community needs to have confidence in the agency. In fact, in a recent speech the Director-General of ASIO spoke quite strongly of the need for people to understand that ASIO needs to run its operations covertly in the public interest. But it also needs to reassure the public as to its exercising of extraordinary powers like the ones that we are debating here today, so that the public has confidence that these powers will be exercised properly. A 10-year period of time, in my view, and in the committee’s view, does not allow that to happen.

No agency is above review or scrutiny, particularly an agency whose brief is to conduct covert operations on behalf of the Australian community. In doing so, the community gives that agency trust but it also wants accountability, it also wants scrutiny and it also wants to know the agency is doing its job—and, in essence, as I believe and the committee believes, a 10-year sunset clause does not give that assurance or guarantee. The fact is that, regardless of whether we like it or not, a five-year sunset clause encourages the agency and the government to operate those powers with increased responsibility. While I do not believe that a 10-year sunset clause will enable them not to exercise their powers responsibly, I do think a five-year sunset clause gives a market signal: we do not want ASIO to wind up like the then DIMIA.

ASIO is Australia’s front line against a terrorist act being committed in this country. What we do not want, through some sort of legislative slackness, is a culture to emerge within that particular agency which means that shortcuts will be taken. I believe, and the committee believes, a five-year sunset clause will ensure that opportunity or thought will not occur. Certainly, reporting by the agency in question back to the committee indicates that the idea of a sunset clause within a reasonable time frame will work well. What I would ask the agency and the Attorney-General’s Department is this: show me the evidence that having a five-year sunset clause compromises the operation of the agency, because in all of the evidence that was put forward to the committee I saw no suggestion of that at all—and if that is the case I want to know why there is a 10-year sunset clause in this.

I think the committee—and I appreciate that the member for Moncrieff is not here—operates on a bipartisan basis, because that is the way national security should be treated in this parliament. That is what the Australian public demands of both sides of politics. In that spirit, I would ask the Attorney and the government to seriously consider the amendments that the opposition will be moving because, as I have said, they came out of a committee process that was determined to improve the legislation. I believe that if those amendments are accepted that legislation will be improved.

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