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

This bill is intended to respond to the report of the Parliamentary Joint Committee on ASIO, ASIS and DSD: ASIO’s questioning and detention powers—Review of the operation, effectiveness and implications of Division 3 of Part III in the Australian Security Intelligence Organisation Act 1979. It was undertaken by the joint committee. I am currently a member of the newly re-formed Joint Committee on Intelligence and Security but I was not involved with the committee’s inquiry at the time it was undertaken and reported in November 2005.

It is fair to say that the provisions of the ASIO Act involving questioning and detention powers have always been controversial provisions. They have always in this chamber engendered an enormous amount of debate and engendered real concern in the community. The new powers were originally introduced in the ASIO Legislation Amendment (Terrorism) Bill 2002. That bill was subject to thorough and exhaustive committee consideration from both the old Parliamentary Joint Committee on ASIO, ASIS and DSD as well as the Senate Legal and Constitutional Legislation Committee. Lengthy examinations of the bill were undertaken.

The legislation before us responds to the report of the then Parliamentary Joint Committee on ASIO, ASIS and DSD. That committee made 19 recommendations. All those recommendations were unanimous. The committee, of course, has a government chair and it has a government majority. I think any fair-minded person would say if they examined the report of the committee that it was a thorough inquiry. The committee held private hearings on five days and public hearings on four days into these controversial provisions of the ASIO Act. It was a thorough and exhaustive examination of those provisions.

What was the government’s response to the government chaired and government controlled committee? It agreed to six of the 19 recommendations. It agreed to recommendations Nos 2, 3, 6, 8, 11 and 12. To another six recommendations it agreed only in part. That was to recommendations Nos 4, 5, 7, 10, 13 and 19. To a further six of the 19 recommendations the government did not agree. They were recommendations Nos 1, 9, 15, 16, 17 and 18. The final recommendation, recommendation No. 14, was described in the government response as ‘not agreed at this stage’. In my view, it was a disappointing and inadequate response to a serious inquiry by a serious parliamentary committee.

In this second reading contribution, I wish to refer to just two of those recommendations. I want to highlight those two recommendations because the opposition will be attempting to reflect the recommendations of the joint parliamentary committee in amendments to this bill during the committee stage a little later on. The first is recommendation No. 10. It is a two-part recommendation. I read the recommendation to the Senate:

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.

The government’s failure to act on the second part of this recommendation significantly diminishes the safeguards in the detention regime. Ask yourself the question: what possible negative consequences could flow from a statement of facts and grounds on which a warrant was issued being made available to the prescribed authority? It makes obvious good sense that the prescribed authority should have access to all relevant information and that that information should be available to the prescribed authority before questioning commences. I would suggest that a prescribed authority could not possibly fulfil their crucial obligations if they were hamstrung and kept in the dark. We must have transparency on this matter.

Of course, prescribed authorities, by their nature, are persons of high standing. Their role is important—it is very important. It is essential for accountability under this legislation. How can a prescribed authority determine whether questions are appropriate if they do not know the grounds for the issue of the warrant in the first place? How can they judge the fairness of questioning if they do not know the grounds for the issue of the warrant in the first place? And obviously there can be no national security implications here. The government determines who the prescribed authorities are, and no argument has yet been presented by the government against this very sensible and, one would have thought, straightforward recommendation of the PJC.

The second recommendation of the PJC that I would like to draw attention to—which, as I said, will be the subject of an amendment at a later stage—is recommendation No. 19, in relation to continuation of the legislation. I read that recommendation to the Senate:

The Committee recommends that:

• Section 34Y be maintained in Division 3 Part III of the ASIO Act 1979, but be amended to encompass a sunset clause to come into effect on 22 November 2011; and
• Paragraph 29(1)(bb) of the Intelligence Services Act 2001 be amended to require the Parliamentary Joint Committee on Intelligence and Security to review the operations, effectiveness and implications of the powers in Division 3 Part III and report to the Parliament on 22 June 2011.

In other words, it recommends a review by the committee of the parliament charged with undertaking these reviews, which now has the name of the Parliamentary Joint Committee on Intelligence and Security, and for a sunset clause to come into effect later that year, in late November 2011. The proposition in simple terms, if you like, is a 5½-year sunset clause, as opposed to the government’s proposal, which is a 10-year sunset clause. As Senator Ray said a little earlier in his contribution, a 10-year sunset clause is no sunset clause at all.

It is clear from the statistics that are available that a majority of senators will not even be here in 10 years time. The last available statistics in relation to the length of Senate terms show that the average length of a senator’s term is some seven to eight years, so a majority of the place will have turned over. Of course, it is a similar pattern for the House of Representatives. So this 10-year sunset clause is farcical. There is no point at all in having a 10-year sunset clause. It is a clayton’s sunset clause.

I am also interested in the hypocrisy of the Liberal Party when it comes to this issue of sunset clauses. When the Liberal Party was in opposition, it had a very different view on these matters. In December 1990, Mr Jull, now the Chair of the Parliamentary Joint Committee on Intelligence and Security, proposed a three-year sunset period in a coalition amendment to the Australian Sports Drug Agency Bill. In December 1990, the Hon. Andrew Peacock, well known in the Liberal Party, proposed a two-year sunset clause in a coalition amendment to the Data-matching Program (Assistance and Tax) Bill. In 1991, the aforementioned Andrew Peacock, in a coalition amendment, proposed a two-year sunset clause for the Copyright Amendment Bill. As Senator Ray mentioned, Kevin Andrews, now infamous as the workplace relations minister, proposed a six-month sunset clause in a coalition amendment to the Training Guarantee (Administration) Amendment Bill. We had the Data-matching Program (Assistance and Tax) Amendment Bill in 1992 where David Connolly opposed the removal of a sunset clause and wanted it continued for another year—a sunset period of a year. We had the Migration Legislation Amendment Bill (No. 4) in 1994, when the shadow minister was Minister Ruddock; he did not oppose a three-year sunset period in that legislation. And we had the Small Superannuation Accounts Bill of 1995 where David Connolly proposed a two-year sunset period in a coalition amendment.

The key point about all that legislation is that none of it was as controversial as this legislation. This is amongst the most controversial legislation ever introduced into the parliament. And one of the reasons, of course, that it was so controversial is that it was so poorly drafted by Mr Daryl Williams QC, MP, the Attorney-General at the time. It was draconian, it was extreme, it was sloppy and it was poorly drafted. Only someone like Mr Daryl Williams could have been responsible for the embarrassing legislation that he brought forward. No wonder Mr Daryl Williams QC, MP, left the parliament with his tail between his legs.

I will never forget the meetings I had with Mr Daryl Williams QC, MP, negotiating with him, as I was then the responsible shadow minister for the opposition, and trying to work through a reasonable regime. It was not a question of getting a straight answer to a straight question: you could not get any answer from Mr Daryl Williams QC, MP, to any question at all. You would ask him a question. He would sit there like a rabbit in the spotlight. He would look to one side to his advisers and then to the other side to his advisers—