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

Indeed, I do not want to steal his thunder on that particular point. The Attorney-General, Mr Philip Ruddock, in his second reading speech argued for a much longer sunset clause because reviewing was such an intensive process. Oh, poor old Attorney-General’s Department and poor old ASIO are exhausted because in 5½ years they may have to review this legislation! Frankly, if you cannot hack it, put the cue in the rack. A sunset clause of 5½ years is exceptionally generous. The committee recognised—unanimously, by the way, with a government majority—that three years was a short period of time in terms of security legislation. Why 5½ years? Because it fell perfectly in the electoral cycle—mid stage of an electoral cycle where it could be considered rationally and dispatched well out from an election period.

At one stage, it was argued to us, ‘Oh, we do not want to deal with it in an inflammatory environment.’ For the first lot of legislation, you could not have got a more inflammatory environment—all of which ran the way of Attorney-General’s, the Attorney-General himself and ASIO itself. It really is insulting to us legislators that we may be, in some way, swayed by an inflammatory environment; that we cannot make rational decisions on security legislation. We are so immature, apparently, that that cannot occur. I notice that argument has at least dropped away, and I appreciate that it has.

The argument for a 10-year sunset clause is a total joke. We have not seen many sunset clauses of that length. It is not a sunset clause. We will have probably two directors of ASIO come and go before this legislation ceases. We are all old hacks, I guess, on the joint intelligence committee. Nearly all of us have our careers behind us. We recognise that. We were probably picked for the fact that we do not have a big stake in the future; therefore, we can be more objective. We all joked that with a 5½-year sunset rule, we will not be around for the next review. For heaven’s sake, under this 10-year rule, our successors will probably not be around to review the legislation! In effect, the 10-year sunset clause is no sunset clause at all.

I really believe, irrespective of the government having a majority in this chamber, that this is one occasion on which I would like to see the chamber insist on a reasonable sunset clause—one that serves the nation and does not reward people not wanting to be scrutinised. This is what it is all about: it is about balance—yes, it is tough legislation—but it is also about scrutiny and as much transparency as the secrecy of these areas allows. From that you get an honest system. No-one doubts at the moment that ASIO and the representatives from the Attorney-General’s Department are acting with full propriety in this regard. All those scare campaigns that were run, all those horrific pictures that were raised about this legislation, have not come to pass. All that crying of wolf was for nothing. But people would be less likely to cry wolf, less likely to raise those scare campaigns if they were convinced that this legislation would expire in 5½ years, not 10 years off into the distance.

I want to leave on one last point. One concern that was raised with the committee, and not with full evidence, is the role of state police in these activities. We must have for a variety of reasons the cooperation of the Federal Police and the state police in these regimes. But one wonders whether the state police have been trying to ask, if you like, the interrogators to ask the suspect or the witness about matters not relating to intelligence matters but to criminal activities. You have to understand that derivative use remains in this particular legislation, and I support that—self-incrimination has gone but derivative use remains. But we cannot have, as alleged by at least one counsel for one of the suspects, a situation pertain where police get questions asked before they can pursue them through other avenues, because if the people do not answer the questions or falsely answer them they could get five years jail.

Why we worry about this is that in certain ASIO raids executing warrants, guess what has happened at the premises where the warrants have been executed? The cameras from television stations are outside. They can only do that if they are tipped off. What we are involved in here is a difference in culture—the difference in culture between law enforcement and intelligence gathering, and the two should not get mixed up. This will require a fair degree of leadership from ASIO to make sure that when people are examined and questioned, it is for the purpose of intelligence gathering and not for the purpose of criminal investigation where derivative use will assist them in their inquiries. I do not allege, by the way, that that has happened. All I say is that the allegation has been made and therefore there is a need for vigilance in this particular area. I am absolutely convinced that the leaking of the location of execution of warrants does not come from ASIO. It is not part of their culture. It is not in their self-interest to do so, but it is a bit of a tradition in various state police forces and it must be avoided at all cost.

In conclusion, this legislation on the whole sees improvements incorporated in the system. I would prefer, however, that our amendment in relation to showing the warrant to the prescribed authority go through, but even more so I think this chamber, if it could, should reinsert the sunset clause of 5½ years. It fits the electoral cycle. It was a unanimous decision of nine members of the joint intelligence committee, and I believe it was sensibly thought through. A 10-year sunset clause is just a throwaway line to say we are not going to have one. It will not in certain circumstances keep ASIO honest in terms of their execution of the legislation.