Simon Crean (Hotham, Australian Labor Party, Shadow Minister for Regional Development) Share this | Hansard source

I rise to support the foreshadowed amendments to be moved by the member for Brisbane to the ASIO Legislation Amendment Bill 2006. This is another bill to amend our antiterrorism laws. It reflects the government’s response to the recommendations of the Parliamentary Joint Committee on ASIO, ASIS and DSD arising from its review of ASIO’s terrorism related questioning and detention powers. The PJC on Intelligence and Security—formerly the Joint Committee on ASIO, ASIS and DSD—was given oversight of this legislation and it remains an important mechanism for parliamentary oversight.

In the context of this legislation, the PJC has recommended sensible refinements and improvements in the light of the experience of the operation of the legislation. We support the provisions of this bill that accept the majority of the PJC’s recommendations. However, we believe that the PJC’s recommendations relating to information to be given to the prescribed authority and the length of the sunset clause should be accepted as well. The government does not, and that is why amendments will be moved by the member for Brisbane, and that is what Labor is supporting.

I should make the point also that this bill is being debated in far less controversial circumstances than the earlier bills in relation to ASIO’s powers. Debate today is not taking place in the highly emotive atmosphere of 2001 and 2002, following the attacks in New York and the Bali bombings. Post September 11 and those Bali bombings, it was essential for governments and parliaments to respond to requests from enforcement agencies concerning their powers to counter terrorism. But the response, we always insisted, had to be tempered by ensuring that the rights and freedoms fundamental to Australian citizens are also protected. This is the fundamental balance that we as a parliament have to get right.

In the wake of those attacks by terrorists against Australian citizens resulting in horrific loss of life, Labor accepted at the time the argument that ASIO’s powers had to be increased to help deal with this new threat. In essence, ASIO then had powers to ask questions of terrorist suspects but not to demand answers. The law in other circumstances in this country does require people to answer questions—why not have the same requirement for those believed to be associated with terrorist activities? That principle made sense to us and we were prepared to extend those powers, but we insisted that, if they were to be extended, it had to be done in a way that protected the basic rights of the people who were going to be questioned.

The Howard government through this whole exercise since September 11, left to its own devices, has never got the balance right—never. It prefers to play to the politics of fear and insecurity. It has never of its own initiative sought to deal constructively in a bipartisan way to address the issues in this parliament. So up until now it has been left to parliament, with a Senate which until recently the government did not control, to ensure that we got that balance right. The position of the Australian Labor Party has been critical to date in achieving the best possible outcome.

It is worth while reminding this House of the history of that debate and of the proposed legislation—the precursor to this legislation—that the government talked about and wanted to introduce back in 2002 and again in 2003. In that period the government did not deal with this in a rational and calm way. The Prime Minister and the then Attorney-General, Daryl Williams, were only too willing to play wedge politics and to exploit the rhetoric of fear. It was the Labor Party that was committed to getting the balance right and that ensured not only that we had better legislation as a result but that the PJC recommendations, which are before us today, are much more difficult for the government to ignore in pursuing their wedge politics and fear based agenda.

Just think of this: under the original proposed bill back in March 2002, just four years ago, ASIO warrants that this government wanted us to pass could have provided for indefinite detention and questioning of persons who had information on terrorist attacks, including children; detention incommunicado—in other words, no guarantee of access to legal advice for the person being questioned—detention warrants to be issued by the executive—that is, by the Attorney-General—not by a judge; no rights to decline to give information or produce a document; and no penalty for officers who did not administer the bill correctly. In that original legislation, the government provided for no parliamentary oversight, review or sunset provision. Under the government’s original proposals, a 10-year-old child could have been held in detention and strip-searched. This was an outrageous abuse of people’s rights in this country and totally unacceptable. We said so and we opposed it.

Another indication of the haste and recklessness with which the original legislation was drafted was its inclusion of the absurd situation where a terrorist suspect could only be detained and questioned for 12 hours but a nonsuspect who may have had information about a terrorist attack could have been detained and questioned for up to seven days. This legislation then had serious flaws and Labor said so. We were prepared to be constructive: we put suggestions to the government, we debated the issues in the House and the Senate and we worked to make the legislation better to ensure that the terrorists and only the terrorists were targeted. On 21 March 2002 we had the ASIO bill sent for further parliamentary scrutiny by the PJC. That committee was given just five weeks to complete its report. Following public criticism, the government agreed to extend the inquiry to June.

In the meantime Labor conducted lengthy and successful negotiations with the government on the antiterrorism legislation that it was seeking to introduce. Ultimately, the Prime Minister, who had originally proposed more draconian legislation, was forced to admit that we as a parliament had got the balance right. At the National Press Club on 11 September 2002, he said:

We have, of necessity, tightened our security laws. I believe through the great parliamentary processes that this country has ... we have got the balance right.

But understand this: it was Labor’s stance in the parliament that ensured that we did get the balance right. And it was a balance he was not seeking when it came to extending ASIO’s powers back in 2002.

At the time, there were those who argued, and perhaps still argue, that we should not be increasing ASIO’s powers at all. The Labor Party do not agree with those arguments. We have responded to the very real threat of terrorism in a way that increases our preparedness and power to deal with terrorism while, at the same time, keeping the balance and protecting the rights and liberties of individuals.

In the middle of these inquiries that I talked about and post the October 2002 Bali bombings, the government wanted to introduce sweeping powers to enable the Attorney-General alone to proscribe terrorist organisations. We opposed that power as well. We opposed it being in the hands of the Attorney-General—it was too much power in the hands of one person. In the spirit, again, of constructive cooperation, we proposed judicial oversight, not parliamentary oversight, to deal with this. We said that we were prepared to accept proscription by the United Nations. We also at the time moved swiftly and introduced a private member’s bill in this parliament to proscribe Hezbollah, based on intelligence briefings we had been given about the activities of that organisation. Again, it was Labor taking the initiative to deal with terrorism and terrorist organisations while always considering the need to protect the civil liberties of ordinary Australians, making sure that they were not overridden by the hysteria that this government was trying to whip up.

After the proscription debate, which saw us successful in preventing the power of proscription being in the hands of the minister alone, the two Senate committees reported on the ASIO bills. Based on all the evidence that they had had before them, they recommended a number of amendments—amendments we in the Labor Party were prepared to adopt because we believed that they significantly improved the bill in getting the balance right, but amendments the government refused to accept.

In essence, the debate then became around principles that we insisted had to be included in the bill—principles such as the choice of legal representation by the person being questioned; protection of children under the age of 18; a three-year sunset clause to ensure further parliamentary scrutiny; and the introduction of a questioning regime, not a detention regime. We said that, in its application to young people aged 16 and 17, the bill should only apply if they were suspects, not if they were nonsuspects, and we said that the period and conditions of questioning under this bill should be comparable to those under the Crimes Act. We also insisted that rolling warrants could not be available—if there was to be additional detention it had to be based on additional and materially different information.

The Prime Minister of the day insisted on the hard line, ignoring the recommendations of the parliamentary process, ignoring our offers to him to negotiate a successful outcome. The Prime Minister shamefully goaded us in the parliament that Labor would be to blame if we went into Christmas and the parliamentary recess of 2002-03 and there was a terrorist attack. To its great credit, the Labor Party stared him down. We said that he had an option: he could have a bill that was agreed in the parliament if those principles that I have just outlined were adopted. He chose to walk away from the constructive approach. He sought to exploit the politics of division and fear, not to address the new powers for ASIO through legislative reform in a sensible, balanced way. By Labor staring him down, the bill not only was laid aside but became a potential double dissolution trigger.

History will show that there was no terrorist attack over that Christmas. Christmas came and went—and so, it appears, did the Prime Minister’s urgency, having told us in December how important this legislation was. It did not come back into the parliament for another four months. And, when it was eventually passed in June 2003, the bill that the parliament passed was almost identical to what Labor had been proposing back in December. We could have had it in place six months earlier.

It is true that the government did not agree with all of the proposals that Labor put forward, and we were prepared, given that the key ones that I referred to above were adopted, to pass the bill. But, in doing so, we also made it clear that, when elected, we as a government would introduce new amendments to improve the deficient proposals and to implement the ones that we had not been successful in forcing the government to adopt—for example, amending the act to ensure that custody is limited to a maximum of 72 hours under each warrant and also to remove the reversal of the onus of proof for elements of some offences.

I go through this history to demonstrate that it is possible for the parliament to get this balance right—the balance between being tough on the terrorists but also recognising the basic rights and liberties of our Australian citizens. We are making sure that, in getting the balance right, we do not compromise the work of our law enforcers. We got that balance right. This was admitted by no less a person than Dennis Richardson himself, formerly the Director-General of ASIO and now Ambassador to the United States. He had this to say on 19 May 2005 in evidence before the joint parliamentary committee that is making these recommendations:

The legislation that was initially introduced into the parliament with our support—

that is, ASIO’s support—

and advice was much simpler and was, of course, tougher. We debated among ourselves whether the compromises that had been made in the parliament would make it unduly complex. Our concerns were misplaced. We were wrong in worrying about it. As it has turned out, the balance in the legislation has so far been very workable and it has operated very smoothly ...

Again, that balance was only achieved because the Labor Party in this parliament took a stand. It stood by its principles, it stood by its conviction and it was prepared to stare the government down when it was trying to whip up hysteria and fear in the community. The three-year sunset clause that we then insisted upon is the reason we have the amendments before us today: they come as recommendations from that review.

As I said at the beginning, we support this bill subject to the amendments that we will be moving. There are a number of amendments for improving the legislation. These amendments come from a parliamentary process—a bipartisan approach that looks at the evidence and does not look at the political opportunities, which is the only spectrum through which the Prime Minister views these things. I do not need to go through the proposals before us in detail. That has been done by the member for Brisbane. But they do include greater certainty in distinguishing between questioning warrants and detention warrants; protection of client-lawyer privilege; clarification of time periods for questioning; giving right of access to state ombudsmen in relation to the conduct of state police; and improvements to the questioning process. These are all important new safeguards, and we welcome them.

But the government has not accepted the PJC’s recommendation relating to the requirement for ASIO to give the prescribed authority, usually a judge, the full statement of the facts and the grounds on which the warrant is based. The government has not provided sufficient reasons for not accepting that. The Attorney-General did not address the issue in his second reading speech. I hope, given that he is at the table now, he does it today. The government has also not accepted the PJC’s recommendation for a five-year sunset clause, instead proposing 10 years. We believe that is too long and inappropriate. Again, these are matters of balance and judgment. We have demonstrated the ability to get that right far more than the government.

There is a need for tough antiterrorism laws, but there is also a need to protect people’s civil liberties. I support the amendments that are being proposed by the member for Brisbane that will again strengthen the direction and get the balance right. It is always Labor that is putting the constructive proposals forward to achieve that balance.

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