Thursday, 30 March 2006
Appropriation Bill (No. 3) 2005-2006; Appropriation Bill (No. 4) 2005-2006
Earlier today the government presented in this chamber its response to the review by the Parliamentary Joint Committee on ASIO, ASIS and DSD—now the Parliamentary Joint Committee on Intelligence and Security—of the effectiveness of division 3 part III of the Australian Security Intelligence Organisation Act. Typically, this very important response was not debated in this chamber. It just goes back to the fact that there is rarely a rational distribution of time in this chamber. We wasted 10 minutes on a mindless Greens notice of motion, we have had notices of motion read out—it is typical that this parliament often wastes time on trivia and misses some of the more relevant debates.
When this legislation was originally introduced, it was, to say the least, controversial. It installed a very tough regime, but it was all about the collection of intelligence, not about the collection of criminal evidence. I have to say that the original legislation, as it was presented to the parliament, was the most abysmal I have seen in my time in the Senate. This was basically because citizens could be detained for an unlimited amount of time, they were denied legal representation, they were not protected from self-incrimination, 10-year-old girls could be strip-searched—I could go on and on about the faults of the bill.
However, that bill was reviewed by the joint intelligence committee and by the Senate Legal and Constitutional Legislation Committee, and was thoroughly reviewed by my colleague Senator Faulkner. What emerged from the negotiations after those two reports and the efforts of my colleague was a piece of legislation most of us could live with. What emerged was tough but balanced legislation, legislation that incorporated both scrutiny and checks and balances.
One commitment was to review the legislation within three years, a task that has now been completed by the joint intelligence committee. What did we find? We found that the new regime has been used sparingly, with not one detention warrant issued in three years. We found that the prescribed authority has conducted its proceedings with fairness and that ASIO has used professional interviewers. We have concluded that this is a valuable tool in gathering intelligence to prevent terrorist acts.
Some shortcomings in the system have been found and recommendations made accordingly. It is pleasing to see that the government has picked up many of the recommendations, either in whole or in part. Before I turn to those, let me voice two concerns. Firstly, I remain concerned at the role of state police in all these activities. It is essential that state police be involved. More often than not they are quite valuable in tracking down the people to be interviewed. But they also sit in on the proceedings of the prescribed authority, and there is some evidence that their role is not as it should be.
Most people would remember that in this legislation derivative use is not banned. We worry about the fact that the police make suggestions to the ASIO interviewers to ask questions about criminal matters, not intelligence matters, and then the police can make a derivative use of the evidence gathered there as a lead to go and look for other evidence. They cannot use the statements in a judicial proceeding, but they can gain knowledge from them, because if a person refuses to answer a question that may incriminate them from a derivative use point of view they are subject to five years in jail. I would hope that a very close eye is kept by the government on this potentiality rather than reality into the future.
The second problem I have is that, within the act, there is a provision that the report of the joint intelligence committee must be cleared by the relevant agency and the relevant minister. I do not challenge that in any way. I just think that this particular agency, ASIO, takes an overbearing attitude to their censor’s role and sometimes their suggested amendments do not comply, in my view, with the requirements of the legislation; they go beyond it. I have detected a slight change of attitude in the last year in the way ASIO responds to these matters, and I would urge the Attorney-General to closely monitor it, because you want to have a responsive agency.
Having said that, I would like now to turn to one or two of the recommendations. I think it is excellent that the government has accepted the right of individuals to appeal to the state Ombudsman. This was not covered off in the original legislation. Because state police forces are involved, there was no previous right of appeal. If it was the AFP, you could go to the federal Ombudsman, but, if it was a state matter, there was no right of appeal.
Secondly, the government has accepted the recommendations to enhance the rights of lawyers in these matters. Historically, I have never been one to argue for a higher legal involvement, but it became apparent from the evidence in one or two instances that you need a higher involvement by lawyers. For instance, in the hearings of a prescribed authority—depending on who the prescribed authority was—lawyers could not intervene in proceedings to have the questions clarified so that their clients understood them. This is remarkably important when, if the clients falsely answer, they could be sentenced to five years in jail. It is just a matter of getting the balance right, and I am very pleased that the government has accepted these recommendations.
The one really jarring note in this government response is its almost insolent dismissal of the committee’s recommendation as to the length of the sunset clause. A unanimous recommendation by nine members of the committee, from all parties—Liberal, National and Labor—was that a sunset clause be adopted. We took a three-year sunset clause and recommended that it be 5½ years—quite a generous extension of the sunset clause. We nominated a specific date for the sunset clause that fitted sensibly with the electoral cycle and meant the review and the revote on the legislation would be at the midpoint of a parliamentary term, not subject to all sorts of emotive pressures. It could be rationally dealt with at the time.
I think a 5½-year sunset clause was a very reasonable proposition from the committee. But what do we get from the government? ‘Oh, no, we’re not going to have that. We’ll have a 10-year sunset clause.’ Well, I do not think 10 years is a sunset clause, frankly. How many people in this chamber will be here in 10 years time? Looking around, I guess there may be one or two—maybe none. Senator Polley is here, so we will say one. So, in 10 years time, Senator Polley, I want you to closely look at this legislation again, because we will probably have gone through three director-generals by then. I do not think 10 years is a justifiable thing and I thought I would put that view on the record right now.
The main value of a sunset clause in this case is to keep an agency honest. When an agency know that they are going to be reviewed in three or four years time they tend not to abuse their powers. When it is 10 years away, why would they worry about it at all? This is not any ordinary piece of legislation. This is a remarkable piece of legislation that allows people to be questioned without a right of protection of silence. It allows people to be detained for 28 days and to be questioned at a variety of times over those 28 days. There is a major slice at civil liberties in this legislation. I do not challenge that, because what we are trying to deal with is the threat of terrorism. But what we also want to do is put in the necessary checks and balances, the necessary scrutiny, so that no abuse can occur.
Really, a 5½-year sunset clause is a protection for ASIO. It is not a luxury to give them 10 years. They would be better off with a 5½-year sunset clause than they ever will be with a 10-year one. We tested this with witnesses from Attorney-General’s and from ASIO. We asked, ‘Why do you want no sunset clause at all?’ ‘Well,’ they said, ‘it is resource intensive to have a review and a sunset clause and it distracts from our main mission.’ I have to tell you, Mr Acting Deputy President, if an organisation is not robust enough to suffer scrutiny, if it cannot mobilise the necessary resources to explain itself, it should not be in business. It is a pathetic excuse. Basically, when you read this response, that section amounts to inconsequential spin. It is pathetic. It is just plain weasel words. They have been tested and they could not come up, yet they have repeated the same old arguments.
So what has changed? Why have a three-year sunset clause and move to a 10-year sunset clause? I will tell you why: it is rule 39-37. When we put a three-year sunset clause in, the government did not have a majority. Now that the government has a majority, rule 39-37 applies and we are treated with absolute contempt. This is simply hubris at work, and I find that part fairly sad.
Friday, 31 March 2006
I too want to speak briefly on the third reading of the Appropriation Bill (No. 3) 2005-2006 and Appropriation Bill (No. 4) 2005-2006 to canvass the same issue that Senator Ray addressed in his speech a moment ago. I support the statements that he made. If we look briefly at the history of this matter: we have just had a government response brought down to the review of ASIO’s questioning and detention powers that was conducted by a committee that was effectively the precursor to the current Parliamentary Joint Committee on Intelligence and Security. That government response dealt with all 19 recommendations of the joint committee. In simple terms, six were agreed to, six were not agreed to, six were agreed to in part and one was not agreed to ‘at this stage’.
I want to focus my remarks, as did Senator Ray, on recommendation 19, which was the recommendation of the joint committee in relation to the sunset clause. Here the government response was described as ‘agreed in part’. That is very misleading. It really was not agreed to at all. The history of this goes back to the original bill introduced in 2002 and passed in an amended form in 2003. The sunset clause proposed in that legislation, agreed to in 2003, was such that the new ASIO powers would expire in 2006. In its review of the legislation—something also provided for in the act itself—the joint committee recommended a sunset clause to come into effect on 22 November 2011. As Senator Ray said, that is in 5½ years time, and that was to follow a review conducted by the joint committee by June 2011. The government has now proposed a sunset clause to come into effect on 22 July 2016. That is to follow a review to be completed by January 2016. I want to quote the responsible minister, the Attorney-General, Mr Ruddock, who said this in relation to the sunset clause:
The longer period will also ensure that the legislation can be used over a period the government assesses there is likely to be a need for these powers.
That is what Mr Ruddock said, but I would say that it is not for Mr Ruddock or the government to make that assessment at this stage, by itself, on behalf of future parliaments—on behalf of a parliament that, as Senator Ray says, perhaps no-one who is sitting in this chamber at this time will be a member of. I do not know—I cannot predict the future. I would be happy enough to be alive, frankly, and I certainly will not be a senator at that time, though I have a very close interest in this legislation, as I think any fair senator would say. I was responsible for opposition amendments, both on the floor of this chamber, in moving them and seeing them agreed to, and for having many other opposition proposals agreed to by the then Attorney-General, the discredited, I am afraid, Mr Daryl Williams. There was a great deal of involvement by opposition at that time and a great deal of involvement by this chamber.
There is no doubt that the proposal to have a sunset clause apply in 10 years time, in four parliaments time, is a contempt of the Senate chamber but particularly a contempt of the joint committee that brought down a very fair all-party report. What the government has done here is thumbed its nose not just at the opposition in this place but at all the government senators who took the provisions of this legislation seriously and really did involve and engage in a serious debate around those quite extraordinary provisions. If you are going to have a sunset clause of 10 years, I would argue, do not have one at all.
Remember this: the legislation contains unprecedented powers and those unprecedented powers warrant a thorough and appropriate level of scrutiny and oversight. It needs to be thorough and it is the Parliamentary Joint Committee on Intelligence and Security that has been charged with that responsibility of scrutiny and oversight by the parliament. We need to remember that as we look at this issue of not just the sunset clause but all the provisions. I am concentrating on the sunset clause because I am limited in time. We need to remember that the powers contained within this legislation are extraordinary powers. They break down long-standing legal traditions that date from the time of the Magna Carta in the 13th century. For interest’s sake I will quote parts 38, 39 and 40 of the Magna Carta to the Senate chamber tonight. Part 38 says:
No bailiff for the future shall, upon his own unsupported complaint, put anyone to his “law”, without credible witnesses brought for this purpose.
Part 39 says:
No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.
Part 40 says:
To no one will we sell, to no one will we refuse or delay, right or justice.
You go right back to the 13th century—to 1215—where some of the fundamental legal principles that everyone in this parliament holds dear date from.
I want to say, as I have said before—I probably take a slightly different view to Senator Ray on this—that I believe that ASIO’s detention and questioning powers are barely acceptable. Senator Ray has said that he believes that most of us could live with them. That is true but I think they are barely acceptable. I certainly support, and have done publicly for years, ASIO having enhanced powers to deal with the threat of terrorism in our community, but getting the balance right on this has always been the challenge for this parliament.
Strong review mechanisms were always part of the compact that led to the bill’s original passage in 2003, and it included of course a sunset clause, the capacity for review of the legislation by the joint committee to examine the operations, effectiveness and implications of the act, and the provision by ASIO in its annual report of information and statistics on warrants, questioning time, the prescribed authorities that were used and the like. These were fundamental to the bill’s passage in 2003 and it is absolutely appropriate with these quite extraordinary powers that this parliament ensures that there is a proper review conducted at a reasonable time for such extraordinary powers.
I believe that the parliament will not be fulfilling its responsibility if the government continues to propose a sunset clause to apply in 10 years time—or 10½ years time effectively—from this date. That is not acceptable, it is not appropriate, and we have a responsibility in this chamber and in this parliament to ensure a proper process of examination and scrutiny of how these powers are used and the effectiveness of the legislation.
It is not appropriate to have powers that I believe are best described as emergency powers. They are not just my words. When the legislation was first introduced the then Attorney-General, Mr Williams, said, ‘These measures are extraordinary.’ He went on to say, ‘But so too is the evil at which they are directed.’ Fair enough, but they are extraordinary powers.
If you have these extraordinary powers, the like of which we have not seen at any other stage in Australian history except for wartime—and by ‘wartime’ I mean the two world wars; we have not had powers like this at any other time except during the period of the First and Second World Wars—they should not go without examination, without review and without scrutiny for a decade or more. I hope that the government and the Attorney-General will reconsider what is an absolutely inadequate response to recommendation 19 of the report of the Joint Committee on ASIO, ASIS and DSD, and a very contemptuous response, given the efforts that the then joint committee put into its report on ASIO’s questioning and detention powers.
I want to respond briefly, for just a couple of minutes, on a couple of issues that have been raised both by Senator Ray and by Senator Faulkner. As Acting Chair of the Joint Committee on ASIO, ASIS and DSD for the duration of the inquiry into the questioning and detention powers, the review of that legislation, can I say that we worked long and hard to make sure that at the end of the day we had unanimous recommendations. It is true that we had 19 recommendations. It is also fair to say that in most instances, even where there are unanimous recommendations from committees, the government does not always see fit to accept all the recommendations of a committee, even if they are unanimous.
The issue that has been raised at length is that of the sunset clause. As a member of that committee and as someone who chaired that committee, I place on the record the fact that I still support the recommendations of the committee in relation to that sunset clause. One of the issues that Senator Ray touched on—but I do not think it was made quite clear to everybody—was that, in reviewing the questioning and detention powers, we could only review half thoroughly, because there had never been anybody detained. We would have liked to have been able to look in total at the questioning and detention powers to see whether they were working correctly in both cases. We were satisfied with the work that was being done on questioning—we made recommendations we thought would improve that regime, and some of those recommendations have been accepted—however, we were unable to review whether or not the detention powers that were put in place by this parliament a couple of years ago actually were working in the way that we would hope they would work.
In discussion with members of the opposition and of the government, we had a good think about the issue of having a sunset clause in the legislation, and we came to the agreement that there should be one. I know it was opposed by some people and it was supported by others. Some did not want even to renew the legislation, but as members of that committee we thought—and we unanimously came to this view; it was a good, balanced position—that we should have a sunset clause but one with a reasonable time limit.
I hope we do not have to use the detention powers; I hope they never have to be used, that there is no cause to use them. However, if at some stage in the next four or five years they are used, we will have a chance to review them to see whether they are working properly and whether they are doing the job they set out to do. It was with that in mind that we thought we would give the sunset clause 5½ years. It would not be reviewed in the next parliament; it would be reviewed in the parliament after that. We thought that was a substantial amount of time. I remember discussing this with Senator Ray and we said, ‘Neither of us will be here to review it. It will be somebody else’s job.’ We thought it was a fair and reasonable arrangement.
While the government have not accepted that proposition of ours and have instead come up with a 10-year sunset clause, I think I should place on the record that I believe that our recommendation was a good compromise. In coming to the 5½-year sunset clause, we were working on a compromise which we thought satisfied the arguments of both groups—those who did not want the legislation to proceed any further and those who did not want a sunset clause at all. We felt that this was a good and reasonable compromise. I place on the record my disappointment that the government did not accept that recommendation. Some of the other recommendations that they did not accept I did not think were that important, and they accepted a lot that were important.
As acting chair of the committee at the time, I felt I should respond on this issue, and I am quite happy to put those thoughts on the public record in this place.
Question agreed to.
Bill read a third time.