If we do go to an ASIO election, Howard will have to beat not only Labor, the centre-left and the far-left, but also the far-right he scored post-Tampa. Unlike the Tampa election, One Nation, the National Civic Council and the like strongly oppose Howard’s extreme extension of state power over Australian citizens. Hold on to your hats – this debate will be amazing!

At 4.479pm yesterday the Senate passed its amended ASIO bill by 45 to 12. Only the Democrats, the Greens and One Nation opposed it, but the government voted yes so it could return to the House of Representatives and John Howard could decide how he wanted to play the game for Christmas.

Since then, it’s been up and back, but Hansard is not yet available on this phase. In this entry I publish the final speeches by the key protagonists in the Senate before the Parliament went wild, so you’re clear on the history and detail of the issues in debate, and what politicians argued before craziness took over.

The speeches make it clear that if we do go to an ASIO election, Howard will have to beat not only Labor, the centre-left and the far-left, but also the far-right he won over post Tampa. Unlike the Tampa election, One Nation, the National Civic Council and the like strongly oppose Howard’s extreme extension of state power over Australian citizens. Hold on to your hats – this debate will be amazing!

Senate Hansard, Thursday, 12 December 2002

AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION LEGISLATION AMENDMENT (TERRORISM) BILL 2002

THE ALP

Senator John Faulkner, ALP Senate leader

Getting to this point on this bill has been a long and difficult process. The government introduced the ASIO bill into the House of Representatives on 21 March this year. But the bill the government introduced in March is very different to the bill we now have before us.

The ASIO bill as introduced on 21 March 2002 would have allowed adults and children to be detained, strip searched and held by ASIO for rolling two-day periods that could be extended in-definitely, even after questioning had concluded.

While detained, Australians could be denied access to people outside of ASIO and could not inform family members, their employer or even a lawyer of their detention. The proposed section 34F(8) of the bill stated:

A person who has been taken into custody, or detained, under this Division is not permitted to contact, and may be prevented from contacting, anyone at any time while in custody or detention.

Under the original bill, a 10-year-old child could have been held in detention by ASIO and strip searched.

There is no way that this bill could have been accepted by the opposition.

There is no way that this bill could have been accepted by the legal profession.

There is no way that this bill could have been accepted by ordinary Australians.

The opposition used the processes of parliament to ensure that the bill was thoroughly examined and to provide an opportunity for the many organisations and individuals with an interest in this bill to have their say. The original bill was referred to the Parliamentary Joint Committee (PJC) on ASIO, ASIS and DSD. It was also referred to the Senate Legal and Constitutional References Committee. The PJC on intelligence services undertook a detailed examination of the bill, including public hearings, and they produced a bipartisan advisory report which was heavily critical of the government’s bill. The report stated:

The bill in its original form would undermine key legal rights and erode the civil liberties that make Australia a leading democracy.

The parliamentary joint committee made 15 substantive recommendations that were intended to go some way towards making the bill more acceptable. At that time, the Senate Legal and Constitutional Legislation Committee did not conduct a detailed inquiry into the bill, but it reserved its right to do so if the government did not accept all of the PJCs recommendations.

The government’s amendments to the bill did not adequately address the concerns of the two committees. The amendments fell well short of what the joint committee considered the minimum necessary for the bill to be acceptable. In effect, the government only fully accepted 10 of the PJCs 15 recommendations.

Even more importantly, the government still proposes that people who are not suspected of any offence may be detained in secret for up to seven days.

In contrast, under the Crimes Act, murder suspects can only be detained by police for a maximum of 12 hours. They must then be charged or released.

In fact, the government is making the absurd proposal that a terrorist suspect can only be detained and questioned for 12 hours but a non-suspect who may have information about a terrorist activity can be detained and questioned for seven days.

In light of the completely inadequate response from the government to the PJCs recommendations – and I stress that they were bipartisan findings of the Parliamentary Joint Committee on ASIO, ASIS and DSD – the opposition successfully moved at the second reading stage in the Senate that the bill be referred to the Senate Legal and Constitutional References Committee. The committee’s main task was to examine alternative ways of enhancing the capacity of our law enforcement agencies to counter terrorism without compromising civil liberties.

The Senate committee undertook a detailed examination of the bill in a very short time frame. In the view of the opposition, the committee members should be commended for the excellent report that they produced.

Again, it was a report with a high degree of bipartisanship on the essential elements of principle that are contained in the bill. The committee recommended a viable, alternative model for strengthening counterterrorism powers, one which the committee believes provides:

… a basis for improving and progressing the legislation, while keeping its provisions within acceptable bounds and respecting the rights and freedoms that are fundamental to the Australian community.

All the parliamentary committee considerations led to a substantially revised model for strengthening the intelligence gathering powers of the Commonwealth with regard to fighting terrorism.

At the same time that these committee considerations were under way, the opposition continued to discuss with the government the provisions of this bill with a view to resolving our differences and, if possible, reaching agreement on changes to the bill. I have to say that, while I appreciate the governments readiness to engage in these discussions, it has been ambivalent in its approach.

At times the government seemed to genuinely want an accommodation; at other times it seemed to me that it preferred differentiation.

At times it appeared to have been seized as to the urgency of the bill; at other times it seemed to have been perfectly happy to leave this bill on the back-burner.

The end result of this necessarily lengthy process of consideration and consultation is the bill that we now have before us. It is a bill which significantly enhances ASIO’s intelligence gathering capacity in relation to terrorism offences and it provides strong protections for those who are subjected to questioning.

There are those who argue that we should not be increasing ASIO’s powers at all. Let me be clear about this: the Labor Party does not agree with those arguments.

There is no question that we are facing an enhanced threat of terrorism in the wake of September 11 and the Bali bombings. We must respond to that threat. As legislators, we owe it to the Australian public to ensure that our security and intelligence agencies have all the necessary powers to detect and prevent terrorist attacks.

ASIO is our front line against terrorism. At the moment ASIO can ask questions but it cannot demand answers, and that is quite clearly a problem and it needs to be fixed. Why should we permit a compulsory questioning regime for royal commissions, the Independent Commission Against Corruption and other state crime commissions, and agencies such as the Australian Securities and Investments Commission, but not for ASIO? Why should we treat corporate crime as more important than terrorism? Quite clearly we should not do that, and that is why the opposition has looked to these models in trying to determine what a reasonable, compulsory questioning regime might look like.

The government has proposed a detention regime, and a very harsh detention regime at that – up to seven days and with the detainee potentially being incommunicado for the first two days without access to a lawyer. Why should a person who is not suspected of any offence, but who is simply thought to be able to assist with information relevant to the investigation of a terrorism offence, be treated worse than a murder suspect?

In other words, why should a nonsuspect be treated worse than a suspect? The opposition remains very firmly of the view that such an approach cannot be justified.

What are the new powers that we are giving ASIO in the bill now before the Senate? What are the new protections that we are providing to those who might be subjected to this new regime? Through amendment, the Senate has largely put in place the alternative model that was envisaged by the Senate committee.

It has a significant number of features and safeguards: compulsory questioning by ASIO officers before a prescribed authority; custody directly linked to the questioning and no detention for other purposes; access to legal representation of choice; protection for children under the age of 18; a detailed statement of questioning procedures; and the maintenance of comprehensive and proper parliamentary scrutiny of the system and of the outcomes of the system.

Each time the government has come up with a problem or a sticking point. The opposition has been assiduous in considering the issues and developing solutions consistent with the principled position it has taken on the bill. I can even say that the opposition has bent over backwards to find solutions to the workability problems raised – and raised at short notice – by the government.

As an example, the government’s constitutional issues concerning chapter III limitations on using serving federal judges were raised as a stumbling block to the workability of the questioning regime. The opposition proposed an alternative pool of judicial experience to address this issue, and then the government came up with further problems with this solution. The government says there are not enough retired judges. Senator Ellison bandied around the figure of 22. On the basis of our own inquiries to state and territory governments, we are confident that the pool of retired judges is in excess of 150.

Nevertheless, the opposition have again addressed the governments concerns and provided an appropriate and workable alternative. We urge the government to accept it. In other words, the opposition has laid our bona fides on the table and we have done that right here in the chamber during the committee debate.

We are intent on providing workable and appropriate tools for gathering intelligence on terrorism and we have bent over backwards during the Senate’s consideration of this bill to ensure that the government’s concerns – those stumbling blocks – are overcome.

We are providing powerful new tools for ASIO in their fight against terrorism. We say and strongly believe that the protections are appropriate, that the protections are adequate and that the protections are balanced.

The government will no doubt argue that the enhanced powers do not go far enough and that the protections go too far. I am sure that is what the government will say. We simply do not agree. The government might be disappointed that it has not got everything it wanted in the committee debate. We are very pleased, and I think the Australian community as a whole should be very relieved, that that is the case.

The government now has a choice: it can vote for the bill as amended or it can reject it. The government can accept the new powers that the Senate is offering for ASIO, along with the protections that the Senate is insisting upon.

Alternatively, it can reject those powers, and I suppose it always has the opportunity of using this bill politically. At the end of the day, the issue here is whether the government and this parliament act in the national interest – and for the government the issue is not only whether it acts in the national interest but whether it acts in its own perceived political interest.

I say that the solution that is being determined by the Senate is a balanced and principled outcome. I believe that the powers in this bill are tough and un-precedented. I also say that they are necessary. But when you have tough and unprecedented but necessary powers, you also need adequate safeguards and protections.

I believe that the bill, the third reading of which is now to be voted upon in the Senate, delivers both those objectives. The opposition will be supporting the amended bill and I urge the Senate to do the same.

***

THE DEMOCRATS

Senator Brian Greig

In this third reading debate on the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, I begin by emphasising that we Democrats abhor and oppose terrorism as much as any other Australians. Like other Australians, we are angered, saddened and shocked by terrorist attacks such as the ones we saw on September 11 and more recently with the Bali bombings. We recognise that the threat of terrorism poses new and, I dare say, complex challenges for governments around the world.

But there is no obvious way in which to address that threat effectively. As many have observed, terrorism is a threat not just to the lives of innocent civilians but also, at times, to democracy and freedom. The Democrat response to terrorism is to ensure that we seek to protect lives as well as democracy and freedom.

On 17 September last year Prime Minister John Howard said:

Wouldn’t it 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 …

He was referring to the events of September 11. Unfortunately, in making that statement, the Prime Minister prophesised the ultimate flaws in what has become his government’s response to terrorism. We Democrats have been dismayed to see the terrible, tragic and obscene irony of that response over the past 14 months manifested principally in the suite of anti-terrorism bills we dealt with earlier this year.

The government has consistently made the case that effectively responding to terrorism requires a departure from fundamental human rights and freedoms. Since September 11, we have repeatedly heard the mantra from many politicians around the globe that the world has changed. This mantra has been relied upon to challenge the foundational tenets of our political and legal system.

The thinking seems to be that the world has changed and therefore the way we deal with the world must change too. The presumption of innocence, the right to a lawyer, the right to remain silent and the right not to be detained arbitrarily have all been threatened.

This is wrong and it is dangerous, and in many ways it plays into the hands of the very people seeking to destabilise our accepted way of life and general stability and security. If the aim of terrorists is to cause fear and uncertainty then we must not let their presence and activities induce a climate of fear and uncertainty in our own day-to-day lives, causing us to abandon the very legal protections that we acknowledge as being important to the essence of freedom and democracy.

I take the opportunity to record the Democrats’ great disappointment that this bill is even being considered at a time when there is a complete absence of an Australian bill of rights or at least a charter of rights. This legislation clearly illustrates that the rights and liberties of Australians are not inalienable but may be overridden by clear legislative intent.

Australia is now one of the only remaining common law countries which lacks a bill of rights, and there is no reason which justifies Australians being exposed to potential derogations of their fundamental human rights and freedoms when the citizens of other common law countries are not.

Two months ago today, Australia was confronted with the tragedy and sorrow of the Bali bombings, in which so many innocent lives were lost. In the wake of that incident, it became clear that Australia needed to examine and assess its intelligence capabilities in order to effectively combat terrorism in our own immediate region – although, of course, this bill was introduced prior to 12 October.

The Democrats are acutely aware of the need to ensure that Australia’s intelligence agencies operate effectively in order to protect the safety and welfare of the Australian community. As legislators, we have a responsibility to act in the best interests of those whom we represent. Often this involves a delicate balancing between competing interests.

I am sure MPs would acknowledge that we have all received countless emails and letters from people expressing their very serious concerns regarding this legislation and the severe effect that it will have on the rights and civil liberties of all Australians.

I say all Australians because the legislation does apply to all Australians, not just those suspected of involvement in terrorist activities. The scope of this bill is perhaps its most disturbing flaw. I believe the government has failed to demonstrate why it is necessary for Australians to be seized, dragged away and questioned by ASIO, when citizens of other nations are not subject to such draconian powers under comparable legislation.

It seems to me that the tragedy of Bali has united all Australians in our resolve to fight terrorism and prevent further attacks, particularly in our own region. I do not believe that either the government or the opposition, despite being asked on numerous occasions, has provided any compelling arguments or reasons as to why such power is necessary in Australia when it has not been considered necessary in comparable jurisdictions such as the United States and the UK.

Of course, we must consider appropriate arrangements for the detention of terrorist suspects and for the questioning of those involved in terrorist activities. However, the government has yet to make out its case for extending such arrangements to all Australian citizens.

I believe that an honest assessment of this legislation should lead to the conclusion that it is not ordinary, everyday Australians who are at issue here. There is no evidence to suggest that Australian citizens would be unwilling to assist ASIO or any intelligence or law enforcement agencies in the gathering of information relating to terrorism. The fact that the government finds it necessary to detain us incommunicado and threaten us with imprisonment if we do not answer questions is very worrying.

My understanding of the Australian people leads me to believe that such powers are entirely unnecessary and unjustified and, indeed, offensive to many within the Australian community.

Of course, there are a number of other concerns associated with this legislation, despite the significant improvements that I will acknowledge have been made over the past few days. These include the fact that the right to silence is removed; there is only a limited use immunity in relation to information provided by the person; foreign nationals detained under the act will be prevented from contacting their embassy during detention; and police powers are vested in an intelligence agency, raising serious questions about accountability implications.

Where does that leave us? At the end of 2 days of debate and discussion in the chamber we have a bill that, I would argue, effectively changes ASIO from an intelligence service into an investigative police power and in some way sees ASIO become a secret police without the accountability or experience of, arguably, the Australian Federal Police or the newly formed Australian Crime Commission.

The constitutionality of the legislation is suspect and potentially breaches the separation of powers. The introduction of this legislation takes place, as I said, in an environment in which there is no bill of rights.

The legislation applies to all Australians, regardless of whether they are suspected of terrorism, and in this respect is more far-reaching than legislation that has been enacted or proposed in either the UK or the USA.

There is no right to silence and no privilege against self-incrimination. A detainee would bear the burden of demonstrating that they did not have the information ASIO is seeking, thereby effectively reversing the presumption of innocence until proven guilty. The government has failed, I believe, to demonstrate why the legislation is required and has failed to show where existing criminal laws and policing powers are inadequate to deal with terrorism and suspected terrorists.

Most of all, I think it is worth noting yet again and I do not think we can say this often enough – that the full effect of this legislation, if it were to become law, would be to enable non-suspects to be immediately detained just because they might have information relating to terrorism. I have to pose the question: What is the point of that?

I would like to quote Professor George Williams, whose contribution to this debate was significant. He said:

Despite the many amendments that have been made to the bill, it remains rotten at its core.

On that basis, and in defence of what we believe are appropriate civil liberties and freedoms and the protections for those, we Democrats will oppose this legislation.

***

THE GREENS

Senator Kerry Nettle

I take this opportunity to speak to the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, which is an extraordinary and, as others have said, an unprece-dented piece of legislation for this parliament to be discussing. The Australian Greens do not believe that this piece of legislation has the balance right between the security concerns of this country and the individual freedoms of Australians.

It is a piece of legislation that goes far beyond similar legislation in comparable countries. It is a piece of legislation in which there remains a fundamental flaw – that being the ability to detain people not even suspected of being involved in criminal activities.

If this piece of legislation were designed to deal with people who were about to commit a terrorist offence then the argument could be put that it would be very close to what was appropriate. The Greens say that it would not be so appropriate as our current criminal justice system in that it goes beyond that by extending the period of time under which people can be detained and questioned. It places further restrictions on the ability of people detained under this legislation to have access to a lawyer, and it extends the power of ASIO, which has previously been just an intelligence gathering organisation.

This piece of legislation is not just for dealing with people who are about to commit a terrorist act; it is also designed to entrap citizens who are ordinarily going about their business and who are not suspected of being involved in any criminal or terrorist activity.

In that light we can clearly see how unprecedented and extraordinary this piece of legislation is and how it goes far beyond the basic tenets of our legal system. As we have said before, the Magna Carta itself says that people should not be detained unless they have come before a court and are found on reasonable grounds by that court to be guilty or suspected of being involved in a criminal activity.

This piece of legislation goes far beyond that and in doing so represents an abrogation of our civil and political rights. The amendments that have been made fiddle around the edges of what is a fundamentally flawed piece of legislation. They improve significantly the ambit claim that was originally put forward by this government in the post 11 September climate. This piece of legislation, in its entirety, really draws on the atmosphere of fear and suspicion that has been created in the post 11 September climate. It tries to use that atmosphere of fear to push throughthis undermining of our civil liberties.

The Australian Greens oppose this piece of legislation because, even after the amendments put forward by the opposition, it allows for innocent people to be taken off the street without warning, to be interrogated in secret and to be jailed for five years if they refuse to answer questions.

These measures establish a very serious precedent in Australian law, one that goes well beyond any comparable country’s response to the worldwide terrorist threat. The powers that ASIO and the AFP already have clearly are sufficient to allow them to do their jobs properly and these laws as such are an unnecessary and dangerous attack on Australias civil rights.

The government and the Australian Labor Party have failed to make the case for extending these powers to capture non-suspects. Even in the course of two full legislative committee inquiries they have failed to make that case. Throughout those inquiries we heard from numerous prominent legal professionals and organisations about the ways in which our current criminal justice system allows us to deal with the current terrorist environment.

The implications in this legislation are wide reaching for all citizens: for journalists, for political activists, for politicians and for members of the community who are under suspicion for a variety of reasons. These implications are extremely serious. This power to arbitrarily detain is a blunt weapon in the fight against terrorism and it is not in keeping with a country that values its civil and political rights.

The amended bill allows for people not suspected of being involved in a terrorist act or in a terrorist group to be detained without warning for questioning and detention. The proposals put forward by the Australian Labor Party allow for that questioning and detention regime to continue well beyond one day of detention and indeed without a time limit for that detention and questioning regime.

This amended bill allows, where there is any refusal to answer a question, for a punishment of five years imprisonment.

This bill is unprecedented and unnecessary and demonstrates a fundamental abrogation of our civil and political rights in this country. As such the Australian Greens will not be supporting this bill.

***

ONE NATION

Senator Len Harris

I would like to commence my contribution to this third reading debate by clearly indicating that One Nation will not be supporting the legislation, even in its amended form. I clearly indicate to the chamber and to the people of Australia that, had it not been for a combination of the opposition and the cross-benchers, this bill would be considerably worse in its impact on the rights of innocent Australians.

In contributing to this debate, I would like to quote from a letter from the Law Institute of Victoria. In a letter to me on 1 August, they wrote:

The Law Institute of Victoria urges you to vote against this bill in its present form. It is the institutes opinion that the government has not demonstrated that existing powers held by the Australian Security Intelligence Organisation – that is, ASIO – are inadequate to meet any potential security threat. This stance is put forward in particular by the Institute’s Young Lawyers Section Law Reform Committee.

In the alternative, we urge you to insist on the implementation of the recommendations of the Joint Standing Committee on ASIO, ASIS and DSD report and of the Senates Legal and Constitutional Committee report tabled on the fifth of June.

If we then go further to the submission by the Law Council of Australia, again to the Senate Legal and Constitutional Legislation Committee, we move to the concerns relating to the unconstitutionality of the bill:

The Law Council of Australia respectfully adopts the following warning given by Justice Kirby on 11 October 2001against potential excess in the adoption of an anti-terrorism lawa (It is referring to the rejection by the Australian people of a proposal, by way of referendum on 22 September 1951, to add a new section – that is, section 51 – to the Constitution to legislate with respect to communists and communism.)

It goes on to quote:

Given the chance to vote on the proposal to change the Constitution, the people of Australia, fifty years ago refused. When the issues were explained, they rejected the enlargement of federal power. History accepts the wisdom of our response in Australia and the error of the over-reaction of the United States. Keeping proportion. Adhering to the ways of democracies. Upholding constitutionalism and the rule of law. Defending, even under assault, the legal rights of the suspects. These are the way to maintain the love and confidence of the people over the long haul.

We should never forget these lessons … Every erosion of liberty must be thoroughly justified. Sometimes it is wise to pause. Always it is wise to keep our sense of proportion and to remember our civic traditions as the High Court Justices did in the Communist Party Case of 1951.

If we look at the report of the Senate Legal and Constitutional Legislation Committee entitled Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, we see that two issues of constitutionality were raised, and I will speak briefly about the first one, the constitutionality of the executive authorising the detention of a person who is not a suspect. The committee says:

In their correspondence to the Committee, Professor Williams and Dr Carne contended that the High Court’s comments in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 raised doubts about the administrative power to detain Australian citizens not involved in or suspected of a criminal offence, save in a relatively limited set of identified and exceptional circumstances.

So we have these eminent professors raising the probability of constitutional challenges where the government implements the ability to take into detention a person who is not suspected of an offence.

If we look at the progression of the bill, we see that, when the bill entered this chamber, it would have – for the first time I believe – eroded the civil and constitutional rights of the Australian people in a way that no other legislation that I have seen has.

The opposition moved a sunset clause to the legislation, which was passed, so at least we have at this point in time the confidence to know that this legislation will cease to have effect at the time of its sunset.

There are definition changes to the act of terrorism. The government itself brought in an amendment to ensure that a search of a person, whether a strip search or frisk, would be carried out by a person of the same sex.

The governments amendments relating to former judges were defeated and the alternative opposition proposal was put forward. We have seen quite a considerable number of amendments moved to the legislation but the legislation itself, even in its amended form, carries great concern for the innocent Australian citizen.

I have no reservations, and neither does One Nation, about the powers in this bill being used against a person who intends to carry out or who has carried out a terrorist activity against Australia and its citizens whether that be here in Australia or anywhere in the world.

This debate is not about stopping the government using its powers to protect Australians. The debate is about protecting the rights of the innocent Australian. It is no reflection on this government. The concern that One Nation has is not for our present political system or the form of political process that we have in Australia today.

Had it not been for the sunset clause, this legislation would have stood until repealed and that would have presented Australians with the greatest danger. Had this sunset clause not been in place, this legislation could have been used in subsequent years by a person or persons not having the greatest intent for the benefit for the Australian people. It could have been used politically against political opponents within Australia. I clarify those words by saying that there is no inference whatsoever that any present political party in Australia would want to do that. In passing legislation in this chamber, if that legislation does not have a sunset clause we have to take that into consideration.

As I have previously quoted from one of our eminent High Court judges, there are times when we need to pause and think through the ultimate process that this legislation could be used for.

At all times in this chamber we are, I believe, so involved with the legislation that we are working on at the time that there is insufficient ability to go back and look at the impacts of the legislation that we have passed. We could use the example of the deregulation of the dairy industry. Has this chamber reassessed the impact on the dairy industry – whether it has been positive or negative? No, it has not; it has not had time to do that.

In conclusion, One Nation places on the record that it is not our intent in any way in opposing this legislation to assist any person that has any intention now, had in the past, or will have in the future to carry out an action that is detrimental to the Commonwealth of Australia or the Australian people. Our concern in opposing the legislation is based on the impacts on Australia’s innocent citizens.

***

THE COALITION

Minister for Justice Senator Chris Ellison

The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 is a very important bill for Australia and one which is essential for ASIO if it is to look after the security of this country. The bill is aimed at intelligence gathering and is essential for an agency such as ASIO in dealing with any threat of terrorism.

The government’s position on this bill has always been emphatically clear. I reject totally any statement by the opposition that we have in some way been ambivalent. The statements by the Prime Minister and the Attorney-General have made it very clear that we need this legislation to give our intelligence agencies vital tools to deter and prevent terrorism. This is a bill that we need to look after Australia’s interests. We have not wavered from this position, and we do not intend to do so now.

Unlike the opposition, which has ducked and weaved the difficult questions on this bill, we are serious about protecting the Australian community. The opposition has itself been divided on this bill, whereas the government have demonstrated time and time again our commitment to community safety.

We have been emphatic that the ability to question and detain, in strictly limited circumstances, for the purposes of intelligence gathering to prevent and deter terrorist activity is fundamental to this bill. That is something we have stuck to throughout the whole course of this bill and the inquiries and debate on it.

Let us make no mistake: this bill is designed to enhance the capacity of authorities to combat terrorism and to prevent and deter terrorist activities. It is designed to enable the collection of information about potential terrorist attacks so we can better prevent them before people are hurt or killed.

There is no greater human right than to be able to live one’s life without fear of attack, harm, assault or even death from a terrorist activity. In fact, the greatest breach of human rights is that which we see perpetrated by terrorist organisations in the world today. We have always said that we recognise that this bill is extraordinary – it is designed for extraordinary circumstances.

What we have here is a regime which gives our intelligence agencies the ability to gather that crucial intelligence but which maintains those safeguards that can preserve the interests of the individual.

The government have repeatedly said that we will not entertain proposals that render the bill impotent or unworkable. That is why we voted against the amendments moved by the opposition and the minor parties. We certainly cannot accept amendments that would render the bill unconstitutional either. The opposition’s amendment in relation to sitting state and territory judges would do just that.

The opposition amendments go to matters of fundamental principles that we cannot accept. We are forced, however, into aposition where we have to support the bill asamended to ensure that we can take it back to the House of Representatives and undo the damage that has been done. We do not do so lightly, because the opposition’s amendments, as I said, go to the heart of the bill and fundamentally change the nature of what the government have proposed.

The amendments proposed make the bill, at best unworkable and, at worst unconstitutional. Our advice is that there is a significant risk in appointing sitting judges as prescribed authorities and that this would be unconstitutional, regardless of whether they be state, territory or federal judges. This advice was confirmed as late as last night and conveyed to the opposition in confidential discussions. We also sought specific advice on the oppositions amendment today in relation to prescribed authorities which again confirms our position that the opposition’s amendment will render that part of the bill unconstitutional.

Under the opposition’s amendment, which was passed with the assistance of minor parties, sitting state and territory judges will be performing functions under Commonwealth legislation that would give federal executive functions to state judges. Our advice is that there would an unacceptable risk that this would be held to be incompatible with their judicial functions and hence be unconstitutional. The risk is not just an arguable one but a significant one. In the face of such a significant risk and on the basis of advice available to it, the government cannot support the amendment in this form,and I outlined that to the Senate previously.

In my earlier remarks, I mentioned that the government’s original proposal was to have AAT (Administrative Appeals Tribunal) members perform the role of prescribed authority and not judges. I would like to clarify my remarks and correct the record. The bill, as originally drafted, did not make a distinction between the role of issuing and prescribed authorities. Under that proposal, the prescribed authority could both issue warrants and preside over questioning, although they need not have done both. The original bill provided that AAT members and federal magistrates could perform this role, but the bill and the explanatory memorandum made it clear that the role of the prescribed authority was conducted as persona designata. I stress that a previous statement that also included federal judges as prescribed authorities was incorrect. Where the record has to be corrected is that we did have federal magistrates in that role. The Parliamentary Joint Committee on ASIO, ASIS and DSD expressed concerns in relation to this. The committee acknowledged that the High Court in Grollo v. Palmer had decided that the issuing of a warrant by the judiciary is permissible provided that the judiciary exercise the power in a personal capacity. The committee, however, was also concerned about the possibility that federal magistrates presiding over questioning could go further than the decision of Grollo v. Palmer would allow. Under the government’s original proposal, the person who issued the warrant need not have been the person who presided over the questioning. Federal magistrates could confine themselves to just issuing warrants. The parliamentary joint committee recommended a splitting of the roles so that judges issued warrants but AAT members presided over them. The government accepted the concerns and amended the bill in accordance with the recommendations of the parliamentary joint committee. We sought our own advice on the constitutionality of the amended provision. The result was a splitting of the prescribed authority function into issuing authority and prescribed authority. The government accepted that, by splitting the functions, the governments concerns were addressed and the constitutionality of the bill was assured. The opposition, however, has proposed amendments that contradict the parliamentary joint committees recommendations. The government’s advice on the opposition’s proposals in relation to sitting state and territory judges is that they pose an unacceptable risk and would be unconstitutional. I reiterate that, on that basis, we cannot support those amendments. If the opposition were serious about this bill, it would not be exposing its amendments to such risk of invalidity.

I will finish by saying that the government is deadly serious about ensuring that the security of this country is met and that there is community safety in relation to the current environment of threat. We believe that this bill is essential to ensuring that.

We have taken on board recommendations of the parliamentary joint committee and the Senate Legal and Constitutional References Committeerecommenda=tions which we believe to be constructive. We have not taken on board all of those. There is nothing unusual in that. We have not cherry picked the recommendations, as alleged by the opposition. We have said that we will take on board that which is reasonable, but we will not take on board that which will render this bill unworkable and will expose it to constitutional challenge.

We urge the opposition to reconsider its position, to look carefully at the amendments that were put forward and to look carefully at the reason that we have put this bill forward. This bill has been subject to a great deal of scrutiny – no fewer than three parliamentary committees have looked at this bill. That is very unusual for any piece of legislation in the federal parliament.

This is unusual legislation, and it is very serious in its objectives, in the powers that are bestowed and in the safeguards that it contains. But one thing should be made very clear: in this current threatened environment, this bill is essential to the package of measures that we need to ensure Australia’s safety.