Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I rise to speak on the ASIO Legislation Amendment Bill 2006. This bill comes with a significant history attached and it is worth while—in part at least—going through some of the background of this particular bill. Those in the chamber might recall that it was introduced in a form in 2002. It sought to enable the incommunicado detention of nonsuspects, both adults and children, for up to 48 hours with potential for the indefinite renewal of warrants under which they were to be held. That is the background upon which this current bill is before us. That bill was referred to the then Parliamentary Joint Committee on ASIO, ASIS and DSD, together with other antiterrorism bills at that time. It was also referred to the committee that I served on—and still do—as a participating member of the Senate Legal and Constitutional Legislation Committee.

To go back through some of the history, numerous recommendations came out of that particular process, the 2002 bill passed the House of Representatives and was further amended in the Senate. The House of Representatives had accepted many of the amendments but negatived others that the Senate continued to press for. As a result the bill did not proceed. In fact it was laid aside and the rest finally came when the government brought forward a second bill—the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002. It was introduced into the House of Representatives back in March 2003. It was passed but, during the course of the passage through parliament, significant amendmentswere also made to the extent that it was—as those on this side of the chamber would say—a significantly improved bill that finally passed and was enacted.

It had significant powers, and you have to recall the time that was around—it was post-September 11, the government was urging these matters to be pressed and passed, and the opposition was taking a careful and considered approach as it always does in examining these matters. But ultimately what occurred was that the bill became law. What that also laid out was the ability for the matter to come back and be reviewed. What we have now is another report by the Parliamentary Joint Committee on ASIO, ASIS and DSD entitled 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 provided the ability for the parliamentary joint committee to conduct what can only be considered an extensive review. It commenced, effectively, on Friday, 17 January 2005 with an advertisement which started the process. Background papers were prepared by the committee secretariat, hearings were then convened and conducted by members on that committee, and finally this report was produced. That is, in effect, the background to where we are today.

What I can say is that that committee did provide a significant number of recommendations, 19 in all, and it provided for the position where—and I will not go through, and certainly do not have the time to, each and every one of those recommendations—many were picked up by the government in this bill. But I think it is important to look at what the current provisions for questioning and detention are. In short, they enable:

... ASIO to obtain a warrant from an ‘issuing authority’ for a person to appear before a ‘prescribed authority’ for questioning in order to obtain intelligence that is important in relation to a terrorism offence.

Of course, the reasons for that would seem obvious to most. ASIO does have extensive powers but it is also charged with a very important task. ASIO is responsible for protecting Australia and its people from espionage; sabotage; politically motivated violence, including terrorism and the promotion of communal violence; attacks on Australia’s defence system; and acts of foreign interference. So ASIO does have significant powers under this legislation but it also has significant responsibility to ensure Australia is safe.

This bill deals with the ASIO terrorism related questioning and detention powers. The ASIO Legislation Amendment Bill 2006 includes a number of changes that adopt many of the recommendations of the Parliamentary Joint Committee on Intelligence and Security, which I was just speaking about. This is a significant breakthrough in improving a flawed bill. It also extends the sunset clause to 10 years, for review by legislation on 22 January 2016. I will come to this matter, as it clearly needs to be corrected.

Recommendations 2, 3, 6, 8, 11 and 12 of the Parliamentary Joint Committee on Intelligence and Security have been adopted. I will look at a couple of those. Recommendation 2 states:

The Committee recommends that, in order to provide greater certainty and clarity to the operation of the Act, the legislation be amended to distinguish more clearly between the regimes that apply to a person subject to a questioning-only warrant and that applying to detention.

In other words, it was not clear that there were two regimes. The recommendation seeks to ensure that there is a difference to be brought to bear, depending on whether the person is subject to a questioning-only warrant or detention. Recommendation 3 states:

The Committee recommends that the Act be amended to achieve a clearer understanding of the connection between the period of detention and the allowable period of questioning.

These seem to be fundamental matters that are now being sought to be corrected and agreed to. Recommendation 11 states:

The Committee recommends that:

• a subject of a questioning-only warrant have a clear right of access to the IGIS or the Ombudsman and be provided with reasonable facilities to do so ...

I will not go to every recommendation, but schedule 2 provides certain rights for those being questioned or detained and questioned. Those rights clarify the maximum length in detention and how long a person may be questioned for and provide some clarification of the involvement of lawyers. The committee’s recommendation of a clearer regime dealing with the period of detention and the allowable period of questioning has been adopted. The joint committee’s recommendation that division 3 of part III of the act be amended to provide clarity between procedural time and questioning time has also been adopted. The recommendations to improve the operation of the act by distinguishing more clearly between the regimes that apply to a person subject to a questioning-only warrant and that applying to a person held under a detention warrant are in this bill.

I think it is clear that Labor has succeeded in achieving an amendment that clearly distinguishes between ASIO warrants for questioning and those for questioning while in detention. The bill also protects client-lawyer privilege in cases involving questioning warrants and in such cases enabling contact between a subject and their lawyer at any time while the subject is before a prescribed authority for questioning. In this amendment there is an explicit right of access to the state ombudsman or other relevant state bodies with jurisdiction to receive information and investigate the conduct of state police officers. It also imposes an obligation on the prescribed authority to advise the subject of this right.

That seems reasonable. You would expect that to occur. The ombudsman would be entitled to investigate state police officers. It is reasonable that the prescribed authority advise the subject of a warrant of their right to complain to relevant state bodies like the ombudsman. Items 5 and 6 of schedule 2 of the bill include amendments that ensure both questioning warrants and warrants for questioning and detention permit the person to contact a single lawyer of their choice at any time that they are appearing for questioning or are in detention. This equates to recommendation 4, in which the committee recommends that ‘a person who is the subject of a questioning-only warrant have a statutory right to consult a lawyer of choice’. If a person is appearing for questioning before a prescribed authority under a questioning warrant and indicates that they want to make a complaint to the Inspector-General of Intelligence and Security or the Commonwealth Ombudsman, then the prescribed authority can defer questioning and the person must be given facilities to make the complaint. This gives effect to recommendation 11, in which the committee recommends that ‘a subject of a questioning-only warrant have a clear right of access to the IGIS or the Ombudsman and be provided with reasonable facilities to do so’.

This bill allows a person who is detained under a detention warrant to make a complaint to the complaints agency of a police service, state or territory. The bill also enables a person’s lawyer to address the prescribed authority during breaks in questioning, which equates closely to recommendation 5. Whilst there are improvements to this legislation, the government has failed in two very important areas. Labor is deeply concerned that the government has not agreed to recommendations 10 and 19. Recommendation 10 states:

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.

In recommendation 19, the committee recommended that the bill have a sunset provision. But, more importantly, the government and the opposition differ on the time. The government has proposed 10 years, which is, quite frankly, untenable. When the government was in opposition, the Liberals argued on many occasions for sunset clauses of much shorter durations. You can go back and have a look at some of those pieces of legislation, such as the Copyright Amendment Bill 1990. Way back in 1991, the Hon. Andrew Peacock argued for two years in a coalition amendment. You can go back to the Migration Legislation Amendment Bill (No. 4) 1994, for which, surprisingly, Mr Ruddock, while not opposing the bill, looked at three years. Mr David Connolly, for those who might recall, back in 1995 argued in a coalition amendment for two years.

Parliament imposed a three-year sunset clause on the 2002 antiterrorism laws together with an independent review. That was the standard this parliament set in 2002 on similar laws. The United Kingdom’s 2005 antiterrorism laws are subject to a one-year review. I could say a couple of things about the proposed 10-year sunset clause, but it is inconceivable that you could say with a straight face that 10 years is an acceptable period without a review. It would be ridiculous to suggest it if you were not the government, but it seems that the government can say with a straight face that it is reasonable. I do not think it is and nor do the opposition and, I suspect, minor parties and many who made submissions.

The second amendment deals with this government’s arrogant refusal to adopt the committee’s recommendation to require ASIO to provide a copy of the statement of facts and grounds on which the warrant was issued to the prescribed authority. The prescribed authority is supposed to supervise the questioning of a person. It is, you would think, impossible for the prescribed authority to assess whether any questioning is outside the scope of a warrant if they are not provided with a statement of facts and grounds on which a warrant was issued. At 3.59 of the committee report, the committee states:

The Committee believes that, for the prescribed authority to discharge fully their responsibilities, it is important that they have access to relevant information. The prescribed authority is not currently provided with a copy of ASIO’s statement of facts and grounds which support the issuing of the warrant. Access to this information will assist the prescribed authority exercise their supervisory role and a copy of all the relevant documentation should be provided before questioning begins.

It would seem sensible to follow that course. However, this government has demonstrated on many occasions before that it is not and does not wish to be sensible in respect of these matters. Labor will seek to move these amendments and will give the government another opportunity to reconsider its position and support Labor’s amendments. I can foreshadow that now.

Turning to the substantive debate, we have to recall that this was no ordinary run-of-the-mill legislation that sometimes passes in this house. It was perhaps best described in ASIO’s questioning and detention powers, the parliamentary joint committee report, which indicated that this legislation was one of the most controversial pieces of legislation ever to come here. When you look at the period of time, it was a significant piece of legislation which took a while to get through parliament in a form that was finally acceptable to all to pass.

Now we have the review and the government should be in a position to look at the recommendations that arise out of the review and adopt those recommendations, but we find again that the government has chosen not to do that. That is, as I indicated earlier, a significant disappointment. It is the case that the recommendations would provide greater clarity in the operation of the bill but, without picking up some aspects of those two important amendments, the government continues down the track of only doing half its job in this matter. The bill will provide greater certainty and clarity in the operation of the act and it will ensure that greater differentiation is applied in respect of the questioning-only warrants and those applying to persons held under detention. And those changes are welcome, as are the other matters. (Time expired)

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

I seek leave to incorporate Senator Stott Despoja’s speech. She has handled this legislation for the Democrats but is not able to be here during the extended hours tonight.

Leave granted.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

The incorporated speech read as follows—

I rise to speak to the ASIO Legislation Amendment Bill 2006.

The existing laws—and now the re-enactment of these laws—are a violation of the civil liberties of Australians. The laws curb the everyday freedoms of Australians and compromise the integrity of the fundamental institutions that are the foundation of our Government. Worse still, without any official codification of individual rights in this country, we are reduced to simply trusting that the Government knows what constitutes an abuse of its powers. This is simply not good enough.

The legislation gives the Executive the power to detain and question people who are not even suspected of a crime for up to seven days. It gives them the ability to detain and question minors.

These laws undermine the separation of powers doctrine which is the central political convention of this country. This Government is allowing itself to be manipulated by Terrorists to take away the freedoms which we hold dear. If we unjustly strip the freedom of just one person in the name of fighting the terrorist threat, we have already lost not just the battle, but the entire War on Terrorism.

ASIO’s so-called ‘questioning and detention powers’ are extreme measures that are unprecedented in Australia’s history but let’s call them what they really are: interrogation and detention powers. These laws are not proportionate to the supposed threat of terrorism. So far, Australian interests have been attacked by terrorists offshore in Indonesia in 2002 (Bali), 2004 (Australian Embassy Jakarta) and 2005 (Bali). Thankfully, we have no experience with so-called home grown ‘clean skin’ terrorists of the kind that struck at London last year.

When the original legislation was introduced in 2003, the then Attorney-General acknowledged that the measures were extraordinary “We have always said that we recognise that this bill is extraordinary; indeed, I have indicated repeatedly that I hope the powers under the bill never have to be exercised. But this bill is about intelligence gathering in extraordinary circumstances and is subject to significant safeguards.” despite ASIO’s assessment that this country is currently facing a ‘medium level’ threat.

The Government and the Opposition have had time to review and assess the operation of ASIO’s powers of interrogation and detention. The Democrats despite not being directly involved in this committee process have followed it closely and have observed the submissions made to the Parliamentary Joint Committee Inquiry into the interrogation and detention laws.

I note the report produced by the Committee states there was an overwhelming view from the submissions that these powers not be renewed and that all but 3 of the 113 submissions made to the inquiry called for the sunset clause to at least remain in operation.

The Government intends this legislation be in operation for a 10 year period before another parliamentary review and the sunset clause should be activated.

This level of delay is unacceptable and irresponsible.

In order to ensure that laws that dramatically affect the lives of all Australians are not abused, it is crucial that we maintain safeguards to ensure accountability and provide a check on executive power.

The fact that these laws will not be reviewed until 2016 suggests the Government would like to see them as a permanent part of the legal landscape in this country.

The report published by the Committee states that ASIO, to date, has been judicious in its use of the extended powers, however, it remains that the scope of these powers could potentially allow for them to be abused at some future date by an overzealous or incompetent Minister. This possibility would undercut the professional ethos of ASIO and any supporting security agency. Furthermore, under these conditions, what recourse do citizens unjustly singled out and victimised by these laws have in making the government accountable for their actions when things go catastrophically wrong?.

For example there is nothing in the legislation that requires that anyone must ensure that interrogation stops after a 48 hour period. While, to date, we have not had any incidents of interrogation continuing longer than the 48 hours, there still remains the potential for investigators to go beyond this period of time.

Such actions would be in breach of international conventions but not illegal under domestic legislation.

The ability of such abuses of power to go unnoticed is also possible as the legislation does not contain sufficient methods for an affected person to bring complaints to the attention of a non-governmental party. The secrecy provisions ensure that that this person does not communicate any grievances in a manner which would satisfactorily hold someone accountable for abuse of power.

Furthermore, as a Civil Liberties Australia submission dated November 2005 stated: “The world’s best police and security services with the world’s best laws and regulations will, on historical evidence, undertake surveillance on, detain and control/arrest a minimum of 500-1,000 individuals over that same time frame to achieve conviction of a possible 100. At the very least, twice as many innocent people will be caught up by provisions of the legislation each year as those with any case to answer” (CLA 07/11/05: 1). These types of figures are unacceptable.

Under this legislation, a person who discloses anything without authorisation regarding what transpired during their interrogation or detention within a two year period is liable for imprisonment for up to five years. The International Commission of Jurists stated in their submission that

‘because of the two year ban, there is little public scrutiny of the operation of the questioning powers. We have really no way of knowing what is going on. In this way, Australia’s laws are even more oppressive than those in the US and the UK.’

Australia remains one of the last bastions of Western democracy not to have some form of legislative instrument that encapsulates our basic freedoms and rights as Australian Citizens.

The framers of the Australian Constitution believed at the time of its drafting that the doctrines of Responsible Government, Natural Justice and the Separation of Powers should be enough to protect the freedoms of Australian citizens. They would turn in their graves if they were to bear witness to the events of recent times in these chambers, where we have legislation introduced that has the Executive being given the power to detain innocent people for periods beyond what any reasonable person would consider not to be punitive.

In the absence of a Bill of Rights or a Humans Rights Act, it is essential that the Parliament ensure that appropriate mechanisms are included in legislation to strengthen protections for civil liberties.

The secrecy provisions contain no balance of public interest and national security. As they stand, they operate as a blanket ban on anyone—including the media—from informing the public of any information regardless of whether it is in the public interest. In reference to the secrecy provisions Professor George Williams from UNSW, stated during the inquiry that;

They apply a very strict test in circumstances where such a test is not reasonable. They may catch people in circumstances where people ought not to be caught.

Of great concern was one confidential submission from the lawyer of a witness which claimed that the press may be used to print stories favourable to the Government agenda. In the submission the lawyer stated;

…it appeared material was briefed or leaked to the media to create sensational stories about the matter, often with aspects that appeared favourable to the government agenda… any person who seeks to correct such stories by giving the full information or even a proper explanation to the media would face the serious risk of prosecution under these provisions.

During the inquiry, there was a repeat of classified information being leaked to the media, with the images of the house of the affected person being shown on national television.

The idea that the media may be manipulated to serve a government agenda while the affected person may do nothing to defend themselves contravenes natural justice.

It is actions like these that have led to a strong sentiment of distrust and fear of the Islamic Community. The Islamic Council of New South Wales stated during the inquiry that:

The Australian Muslim community needs to feel protected and involved within the fabric of Australian society. The current ASIO laws and any proposed increase in powers will only act to reinforce anti-Muslim sentiments that are not in the best interests of a harmonious society.

If we are to encourage the existence of a harmonious multi-cultural society it is crucial that legislation promotes this as much as possible and reduces the potential for vilification on the grounds of race.

Not only are these actions creating anti-Muslim sentiment but it is also creating distrust of ASIO and other government agencies within the Islamic community. The Federation of Community Legal Centres stated during the inquiry that the legislation ‘leads to genuine fear in the community’ and that the level of fear within Melbourne’s Muslim Community was such that people would not attend information sessions about ASIO’s powers for fear of showing interest in terrorism.

A critical issue with the interrogation and detention laws is access to effective legal representation. The legislation provides that a person subject to a detention warrant may have access to a lawyer, however; a person subject to a so-called questioning only warrant is not assured of the right to legal representation.

Despite recommendations made by the Parliamentary Joint Committee report to allow for persons subject to a questioning only warrant to have access to a lawyer, the Government has not amended the legislation to allow this.

The reason given for this failure to include the right to legal representation was that such a requirement might delay interrogation in the face of an imminent terrorist attack.

While this reasoning might seem on the face of it to be reasonable, it does not take account of section 34U (5) of the legislation which allows for legal representation to be removed during interrogation where that legal representation is being unduly disruptive.

The fact that the Government would suggest that a lawyer could be disruptive is also surprising when we consider section 34U (4) of the current legislation, section 34ZQ (6) in the amendments, which states that a “legal adviser must not intervene in the interrogation of the subject or address the prescribed authority before whom the subject is being questioned.”

The effect of this section is to make the role of the lawyer completely redundant and ineffective.

The ability of the lawyer to know whether a particular line of interrogation is appropriate or not is also reduced because a person’s legal representation is not informed why their client is being questioned.

In addition to these measures, a person who is being questioned or detained is not guaranteed the right to talk confidentially with their legal representation. The proposed amendments state that the communications are not required to be made in a way that can be monitored. The inference from this statement is that while they may not be required to be made in a way that can be monitored, they may still be monitored.

Lawyers who made submissions during the inquiry stated these restrictions were unfair to clients.

They also stated that they believed that the interrogation powers were being used to supplement general policing powers, made possible by the lack of derivative use immunity and by the presence of police who seemed to be investigating police, on one occasion State police who were apparently concerned with a non-terrorist related matter.

We have extraordinary powers introduced on the supposition that they will be used to fairly and judiciously fight terrorism yet, we have reports from a lawyer who witnessed an interrogation session and claims that these powers are being used for purposes beyond which they were created.

It is hard to claim that there is no scope for abuse of powers when we already have allegations that such abuses have occurred.

The transcript of these allegations is classified and not having been given the opportunity to participate in the inquiry, I am restricted to calling on the Government to initiate an investigation into these allegations. This is clearly a situation which would suggest that these laws need further and more serious consideration.

Where there is the potential for serious breaches of civil liberties and, in particular, this case where review is not set for another ten years, it is necessary that the legislation contain adequate reporting requirements so that the Parliament can properly consider the success of the laws.

Despite recommendations from the Parliamentary Joint Committee, the Government has not increased any reporting requirements.

Such a move further reduces the agency’s level of accountability.

Australia is constantly being reminded that it is only a matter of time before we suffer from a terrorist attack; that the world on the whole has changed for the worse; and, we must introduce laws that will address this issue.

In 2003 when the ASIO laws were first introduced many concerns were raised by ASIO that the powers were not expansive enough and that the compromises made by the Government operated to weaken the ability of the intelligence agencies.

It was stated that the compromises made the legislation unduly complex.

Yet, during the inquiry on the review of these laws, the Director-General of Security stated that “our concerns were misplaced. We were wrong in worrying about it.”

Admittedly, implementing safeguards can often be more resource-intensive but it is worth the extra strain on ASIO’s massively increased resources in order to keep this highly secretive agency accountable.

In response to the terrorist attacks of September 11, the Prime Minister made the observation that it would be:

... a terrible, tragic, obscene irony if, in responding ... to these terrible, terrorist attacks, we forsook the very things that we believed had been assaulted ...

With a heavy heart I say to the Prime Minister that the Government has terribly, tragically and with obscene irony forsaken the very things that we believed to have been assaulted by the terrorist attacks of September 11.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

I move the second reading amendment standing in my name:

        At the end of the motion, add:

        “But the Senate:

             (a)    condemns the bill’s 10 year sunset clause;

             (b)    believes that the legislation fundamentally infringes on the civil rights of Australians by:

                   (i)    undermining the presumption of innocence;

                  (ii)    denying proper legal representation to people who are suspected but not proven to be guilty of planning a terrorist act;

                 (iii)    giving very little protection to innocent people caught up in any anti-terrorist dragnet; and

                 (iv)    having no adequate provision for recompense in cases where people have been wrongly questioned and detained.

             (b)    calls upon the Government to develop a Bill of Rights to protect Australians’ human rights and civil liberties and to ensure that the Australian people know exactly where they stand with respect to all of the nation’s laws; and,

             (c)    believes these anti-terrorism laws form a dangerous precedent which leave open the possibility of expansion into other areas by a future ‘security conscious’ Federal Government, especially if coupled with the proposed ‘Access Card’ technology.”

Ruth Webber (WA, Australian Labor Party) Share this | Link to this | Hansard source

Unexpectedly, it would seem that I too now have the opportunity to speak on the ASIO Legislation Amendment Bill 2006. As Senator Ludwig outlined in his contribution, the bill deals with the ASIO terrorism-related questioning and detention powers. It is claimed that it provides clarity for questioning warrants and also for warrants for questioning whilst people are in detention. It extends the sunset clause for 10 years, with a review of the legislation on 22 January 2016. As Senator Ludwig reminded us in his contribution, for those senators who joined this place at the same time as I did, the initial legislation was one of the first and one of the most controversial bills that we dealt with, and we spent an exhausting amount of time considering it.

It is important to place on record that Labor welcomes the changes to clearly distinguish between ASIO warrants for questioning and those for questioning whilst in detention, and it welcomes the subject’s access to lawyers and to the Inspector General of Intelligence and Security. But, as has been outlined—and as I am sure some of my colleagues who will follow will outline more eloquently—we are concerned that the government has not agreed to recommendations 10 and 19 of the Parliamentary Joint Committee on ASIO, ASIS and DSD.

Robert Ray (Victoria, Australian Labor Party) Share this | Link to 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.

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

The Training Guarantee (Administration) Bill.

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

Yes, as my colleague the senior senator from New South Wales tells me.

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

I will speak more about that in a moment.

Robert Ray (Victoria, Australian Labor Party) Share this | Link to 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.

John Faulkner (NSW, Australian Labor Party) Share this | Link to 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—

Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

Mr Acting Deputy President, I raise a point of order. There is fair comment allowed in a robust debate, but I think now the senator is reflecting on a former member in a manner which is inappropriate. The comments that Senator Faulkner has been—

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

Under what standing order is that?

Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I would say, in relation to Senator Faulkner’s comments, that they have been robust and that is the nature of debate in this place; however, the more recent ones, which I will not repeat, I believe are inappropriate and he should be called to order.

Ross Lightfoot (WA, Liberal Party) Share this | Link to this | Hansard source

Whether it is right or it is wrong, Senator Ellison, the standing orders do not protect former members.

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

Thank you, Mr Acting Deputy President. The former Leader of the Government in the Senate, Senator Hill, when I complained to him that we could not negotiate on these matters because of Mr Williams’s incompetence or lack of interest or lack of knowledge said, ‘Oh, just deal with Daryl’s harem.’ That is what he called Mr Williams’s office: Daryl’s harem. I was not going to deal with Daryl’s harem. I wanted to deal with Mr Daryl Williams QC, MP. I wanted to talk to the horse’s head in relation to these matters. I have to say that he was completely under the thumb of these junior staff in his office and it was extremely difficult to conduct any sensible negotiations at all with Mr Williams.

Mr Williams should be absolutely ashamed of himself for that draconian and sloppy, poorly drafted legislation that he was responsible for introducing into this parliament. Senator Ray said earlier in this second reading debate that it was the worst-drafted piece of legislation ever introduced into this parliament in the 105-year history of the Commonwealth of Australia. And Senator Ray was absolutely right. What a legacy for Mr Daryl Williams QC, MP—and how appropriate that he snuck out of the parliament with his tail between his legs. He should never, ever be forgotten for that appalling performance as Attorney-General of the Commonwealth of Australia.

Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

The ASIO Legislation Amendment Bill 2006 is an important step towards balancing protection measures with appropriate safeguards. As previous senators have outlined, it is in response to a review of the ASIO Act by what is now called the Parliamentary Joint Committee on Intelligence and Security. I can say that the work done by that committee was extensive, and I acknowledge the work done by members of that committee. I also want to acknowledge the comments of Senator Ray, who pointed to some of the positive aspects of this bill, albeit that there were recommendations of the committee that the government is not accepting. Senator Faulkner outlined accurately the recommendations which have been agreed to, those which have been partially agreed to and those which have not been agreed to, and the government has tabled its response outlining the reasons for accepting or not accepting some of those recommendations.

I would like to address some points in relation to the debate. The first one relates to the sunset provision, particularly the length of the provision. The government accepts the parliamentary joint committee’s recommendation for ongoing review and a further sunset period for ASIO’s questioning and detention powers. The length of time, however, is a matter of issue. The government is saying that the period of 5½ years recommended by the parliamentary joint committee is insufficient. The government believes that a 10-year sunset period is more appropriate. A 10-year sunset period is consistent with the sunset period applying to the recently enacted Anti-Terrorism Act (No. 2) 2005 and agreed to by state and territory premiers. The experience of recent statutory reviews has shown that such reviews are resource-intensive and impact on operational priorities. I think that is an important aspect to bear in mind when dealing with an agency such as ASIO.

Given these considerations, and the fact that the government is continuously reviewing the effectiveness of legislation, an earlier review or sunset period is not warranted. The longer period is also consistent with the period the government assesses there is likely to be a need for this legislation. As the Attorney-General has said in the other place, it is important that we do not get lulled into a false sense of security that no terrorist attack will happen in Australia. Just recently we saw the head of ASIO at Senate estimates once again outline, in an opening statement to the committee, the current threat to Australia in relation to terrorist activity. It is important that we ensure, therefore, that powers which have been found to be effective by the parliamentary joint committee continue for a period of time in which it is assessed that they are likely to be required.

The opposition expressed concern about the government’s decision in relation to recommendations 10 and 19, which relate to the provision of information to prescribed authorities and the sunset clause. I notice that the opposition has circulated amendments on these topics and I will deal with those during the committee stage when they arise. Suffice to say the government will not be supporting these amendments, for reasons previously set out by the Attorney-General. I particularly note that the bill imposes not just a sunset clause but a requirement for a detailed review by the parliamentary joint committee. That is an important point to note in this debate. One aspect of the sunset clause which the government rejects is the notion that a shorter period would mean that ASIO is less likely to abuse its powers. In the affluxion of time that has taken place, the review has found that the measures provided by the legislation have worked reasonably well. I think that, having regard to that, one can safely assume that they will continue to do so. We are not saying that the legislation should continue without a review; however, a 10-year period is a much more appropriate period to adopt.

The bill has many positive aspects which are very important for the security of Australia. I have acknowledged the work done by the parliamentary joint committee. It is the case with legislation, when it is reviewed by a committee, that the government of the day does not necessarily accept all the recommendations made by that committee. That does not necessarily mean that the committee did not carry out extensive work or that the work was not thoroughly done; it is a question of policy and accepting what is relevant and appropriate for the needs of the day. I think that the government has approached this in a rational manner in determining which of those recommendations should be agreed to. I therefore commend the bill to the Senate.

Question negatived.

Original question agreed to.

Bill read a second time.