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

At the outset, let me say that this legislation deals with intelligence gathering pertaining to a potential terrorist act. This is not about law enforcement; it is not about providing criminal sanctions for involvement in terrorism. It has to be said: this is tough legislation, bordering on the draconian. It has caused eyebrows to be raised in the United Kingdom and in the United States. I have been asked by members of the House of Commons and members of the US Congress: how is it possible to bring in legislation that is this tough? Sure, the Patriot Act in the United States is pretty tough legislation, but it basically applies to non-citizens. This particular piece of legislation, especially as it denies the right to silence, is regarded as at the extreme of antiterrorist legislation. Given the many hardline provisions in this ASIO legislation, the crucial thing I stress to these people is that if you have sufficient oversight then some of the more draconian aspects come back into balance.

The joint intelligence committee has, as it was mandated to do, made a detailed study not only of the legislation as it exists but also of how it has operated over the last 2½ years. We say that it is pleasing that only a few people have been subject to questioning warrants and, indeed, no-one has been subject to a detention warrant coming out of this legislation. Overall, one would have to say that the processes have worked fairly well.

There have been some weaknesses identified in the current legislation, and we have made quite a number of recommendations from the joint intelligence committee to the government. In turn, the government has adopted many of those suggestions—all of which, by the way, were unanimous. A few of the recommendations were either accepted in part or were rejected with valid reasons provided by the government, and generally I accept their sincerity on these issues. The reasons for not adopting some of the recommendations seem to me to be well argued and well reasoned. However, two crucial recommendations have been rejected, and the reasons provided by the government for rejection are insipid at best.

Before I go to those two recommendations, let me remind the Senate of what was in the original bill which was introduced into this parliament in 2002 and which was basically set aside, because it remains, to this day, the worst piece of legislation—by far—ever submitted to this Australian Senate in over 105 years. Let us not forget that those provisions were put into this parliament by former Attorney-General Williams and were concurred with by the Prime Minister of Australia, John Howard. Just remember some of the original provisions, if you will.

According to the legislation as it was then construed, we were able to detain and question non-suspects, on a renewable warrant, forever. There were not proper limitations put in. What is more, these very people who were being questioned could be held incommunicado. There was no provision on legal representation, in fact there was a bar on it, for suspects who were to be questioned or detained. There was no protection from self-incrimination. Given the fact that there was no right to silence, we left these people in a position where they were better off to say nothing and cop five years in jail than to self-incriminate themselves and possibly leave themselves open to 10 to 20 years in jail. Under the original legislation, 10-year-olds could be detained and kept incommunicado. Ten-year-old girls could be strip searched. It was a horrible, horrible piece of legislation. Attorney-General Williams and the Attorney-General’s Department showed no shame. Not even ASIO, I think, were happy with the legislation as it first appeared. It is possible that it was introduced as a negotiating tactic: go to the extreme, then retreat back to the middle. That would be more understandable if the legislation had not been set aside because this Senate would not approve it. And, of course, there was no sunset clause whatsoever in the legislation. It was to go on forever. I have given only a small summary of the horrors that existed in the bill.

Once the bill was set aside, some commonsense started to prevail. An enormous effort was put in by the joint intelligence committee to improve the bill. The Senate References Committee on Legal and Constitutional Affairs did some magnificent work in this area. And I have to say my colleague Senator Faulkner, who was the then shadow minister, put in an enormous effort in terms of negotiation and consideration to see this bill improved. I should not be churlish: let me acknowledge that some Liberal backbenchers also put in hard yards on this particular legislation. What emerged from it was still tough legislation, but it was balanced and it had scrutiny. It had technical errors in it and the reason it had technical areas is that we were all concerned with these big picture items and some things slipped through. Now is the opportunity to correct those technical errors. For the most part, the government has done so and is to be congratulated for picking up those recommendations.

The Labor Party wants to pursue two of the joint intelligence committee’s recommendations that the government has failed to adopt. The first one relates to making the warrant available to the prescribed authority. The problem at the moment is when a lawyer wants to intervene—and their right to intervene will be increased under this legislation—on the question of relevance of the questioning process, the prescribed authority does not know the grounds on which the warrant has been issued; therefore, it is left in the impossible position of not knowing whether those questions are relevant or not or whether it is just a giant fishing expedition, trawling through a whole variety of things that were never relevant to the original warrant. I do not think there is any reason why the prescribed authority, which, after all, is trusted with some fairly sensitive information, cannot be at least apprised of the fact of what the original warrant was issued for.

The second of the recommendations already mentioned in this debate relates to the sunset clause. In their submissions to the joint intelligence committee, both A-G’s and ASIO argued for no sunset clause, arguing that the current implementation of the legislation had been exemplary. It is possible of course to attribute that exemplary behaviour to the fact that we had a sunset clause in the legislation. It is a pretty good straightener: when you know the legislation is going to expire in three years time, you are not likely to abuse it. That is the value of sunset clauses. There was a time when the Liberal Party were keen on sunset clauses. If you look to the mid-nineties, you would see that every second piece of legislation they were moving a sunset clause to. There were one-year, two-year and, in one case, just a six-month sunset clause—I think that was taxation legislation or something similar.