Date: June 21 2003
By Alan Ramsey
Six months ago John Howard pulled on his balaclava and strode into the Parliament with his sledgehammer. It was 11.59am, Thursday, December 12. Our Prime Minister was in full ASIO raid mode. His target was the Labor Opposition. His motive was political. His intent was resolute. And, thus fortified, morally and spiritually, he stood at the dispatch box and told a monstrous lie. During a 12-minute speech what Howard said, in part, was: "Labor's amendments will wreck the bill and render it inoperable. From the very beginning Labor has not been serious about serious and necessary amendments to the ASIO legislation. Labor is not fair dinkum ...
"The Labor Party realise they are going to be judged as soft on this issue by the Australian people. That is why we have seen the Opposition Leader come into this Parliament with a whole lot of confected outrage. He knows his amendments will destroy the [Australian Security Intelligence Organisation Legislation Amendment (Terrorism)] bill. He knows if we adopt the procedures they propose this bill will be inoperable.
"We have no intention of parading a pretence, a fabrication, a fraud to the Australian public. We have no intention of going out to the Australian people and saying, 'We have passed a bill which will guarantee that ASIO has the necessary additional powers,' when we know in our hearts that would be a monstrous lie ... What we have today is another illustration of the Labor Party being unwilling to see the real national interest. And the real national interest of Australia at the moment demands a stronger stand against terrorism ...
"We do not accept the Senate's amendments because they will destroy the bill. Therefore we would be perpetrating a fraud if we went out and paraded this bill as acceptable. Labor are weak on this issue. Labor are very weak, just as they were weak on border protection. They remain weak on border protection. They are weak on this issue ... What the Senate have done to this bill is nothing short of security vandalism. They have vandalised it, they have made it unworkable, they have failed the national interest. And that is why we will not accept a bill that does not give the people of Australia the protection they need."
On that note Howard sat down, took off his balaclava and put away his sledgehammer. Thirty-five minutes later he closed the Parliament for the year and went home to Sydney for Christmas. If the Prime Minister couldn't have the bill he wanted, there'd be no bill at all. If ASIO couldn't have the unfettered and unchallengeable right to pick up, on special warrant, people as young as 14, anywhere, any time, detain them in secret, tell nobody, question them for as long as a week, charged with nothing, suspected of nothing except maybe - maybe - having information they may not even realise they possessed, then ASIO would get no new powers of any kind. Well, not for the time being, anyhow.
So what had Labor done?
Or, more correctly, what had Labor's Senate leader, John Faulkner, in alliance with the Greens' Bob Brown and the Democrats done? How had their Senate majority "wrecked" the Government's ASIO bill, made it "inoperable" and "unworkable", a "pretence, a fraud and a fabrication," and "vandalised" it to the point that "it failed the national interest"?
What the Senate did was make 35 amendments, 34 of them Labor's. In doing so, the key changes that so "vandalised" the "national interest" - all of them voted against by the Government in the Senate and, ultimately, rejected by the Prime Minister's majority in the House - were, what?
In summary, 1) the proposed new ASIO "investigative" powers automatically would lapse after three years unless Parliament re-endorsed the legislation; 2) the legislation would apply to nobody under the age of 18; 3) the bill's denial of the right to silence was circumscribed by specific civil rights protections, including against self-incrimination in any future charge; 4) a person could only be detained for questioning and not simply for the purpose of detention without charge; 5) detention under a single warrant could last no longer than a total of 20 hours of questioning, broken into three periods of four hours, eight hours and eight hours; 6) a judge or retired judge would have to be present during any and all questioning; 7) the right of immediate legal representation of choice; and 8) no person would be subjected to more than one broken session of 20 hours of questioning in a seven-day period, while no person already questioned for a total of 20 hours could be held in detention.
These were the Senate changes to ASIO's secret police state powers - and they were, as the Government proposed them, no less than this - that the Prime Minister insisted, in the strongest language, would mean the end of civilisation. Six months later and his own words are proved meaningless. Why? Because most of the changes Howard fumed against last December his Government now accepts. The ASIO powers bill Howard "killed" six months ago has been resurrected and redrafted. In it are most of the changes Howard insisted six months ago were "inoperable, unworkable, a fraud and a fabrication".
And that is Howard's great lie. His change of heart exposes him, again, as a crafty humbug more intent on milking the threat of terrorism for political advantage rather than legislative action in "the national interest". If you think "monstrous lie/great lie" too harsh, consider this.
The Government's original stance on ASIO's powers included: indefinite secret detention, no legal representation, no judicial supervision, no age limit, no protocols, no right to silence, no sunset clause to limit the duration of the bill, no reporting mechanism to Parliament of any kind and no parliamentary review. The revised ASIO bill the Senate debated for most of this week - and will go on debating most of next week - excludes or qualifies most of these powers. The new bill, however contentious it might remain, is light years in advance of what it was.
The only age limit in the original bill - announced in March last year - was a lower age limit of 10 for detainees who could be strip-searched. That's right - 10! I mean, how draconian can a Government be and still pretend it's democratic? (Sub-10-year-olds, I remind you, were to be, or could have been, legally detained by ASIO indefinitely, with not even their parents told. The whole purpose of this police state power was to pick up kids to get them to inform on family members - and to go on holding them, in secret, so they couldn't alert anyone to what was going on.)
By last December, the Government had shifted ground to adopt a lower age limit on "investigative" detention of 14. The Labor/Greens/Democrats lower age limit was 18. Labor and the Government have now compromised on 16. And only 16- to 18-year-olds - that is, juveniles - suspected of actual terrorist activity can be detained. The Government has dropped its earlier insistence of ASIO's right to detain juveniles - as they will be able to detain adults - for questioning only about information they "may" have, knowingly or otherwise.
The Government also has adopted the Senate's insistence the legislation lapse after three years if not re-endorsed by Parliament. So, too, has it agreed to: 1) supervision by a judge of all ASIO questioning of detainees; 2) a detainee's right to immediate legal representation of choice; 3) protocols governing the actual operation of the powers to be tabled in Parliament; 4) parliamentary supervision of the numbers of warrants issued to ASIO for detention under the bill's powers and the numbers of hours of ASIO questioning.
The hardline sticking points between the Government and its Senate opponents concern three key issues: 1) the length of time a detainee can be held under a single warrant; 2) the issue of onus of proof in removing a detainee's right to silence; and 3) the crunch issue of continuous periods of detention. This last matter could see the whole of the Government's grudging co-operation shattered. Debate adjourned two days ago and will resume on Monday. Labor will not support a regime of rolling warrants to detain a person indefinitely. Neither will the Greens nor the Democrats.
If the Government insists ASIO must have such a right, then, for the third time in the 15 months Howard has been trying to get his ASIO powers bill into law, the legislative process will founder in Parliament.
Understand two things. The Government and Labor now agree on a maximum questioning period for a single detainee of 24 hours, broken into three blocks of eight hours with no one session being longer than four hours without a break. But the Government wants the 24 hours to have a time frame across a maximum of seven days' detention. Labor says no, it must be 24 hours across three days only, then the detainee must be released, permanently. Also, the Government, for its part, is arguing the right to seven days' detention under a single warrant, and then a further warrant for another seven days, and so on indefinitely, if necessary. In other words, indefinite detention without charge, plus continuous rolling periods of questioning.
Think about it. This is exactly what the US imposes on the several hundred terrorist "suspects", including two Australian citizens, it still holds and has been holding in isolated military detention in Cuba's Guantanamo Bay for more than 18 months, all without charge, all without recourse to any legal assistance.
You see where this Government of ours gets its creative impetus from for "combating terrorism"? Good ol' George and the boys.
Perhaps now you also understand why, maybe, John Howard has suddenly got this bright idea to end the Senate's right to "frustrate" a government's legislative program.
Think good and hard about that, too.
By Cynthia Banham
A row between Labor and the Federal Government over the number of times suspects can be detained by intelligence agents has placed the ASIO bill in jeopardy days before it was expected to be passed by Parliament.
The Government abruptly suspended debate yesterday when the opposition parties expressed their objections to a little-known clause allowing ASIO to detain suspects on repeat warrants.
The stand-off arose after questioning from the Greens in Parliament late last week revealed there was nothing in the bill to prevent ASIO obtaining successive warrants to detain citizens for continuous blocks of seven days each.
Last week Labor indicated it was prepared to pass the bill after the Government agreed to a number of modifications.
The revised bill allows ASIO agencies to detain for a week, and question for three eight-hour blocks in that time, people suspected of possessing information on terrorist offences.
After prolonged negotiations between the Government and the Opposition, the minimum age the laws could have applied to was increased from 10 to 16. Those detained would also have the right to see a lawyer immediately.
The stumbling block now threatening the passage of the bill is Labor's insistence that ASIO should not be allowed to obtain multiple warrants, which could lead to indefinite detention.
The Government insists that Labor has known all along that ASIO was to be given the power to obtain successive warrants.
For each warrant, ASIO would have to seek the attorney-general's approval and satisfy a federal judge or magistrate of the specific need.
"The Government maintains the effect of the legislation has always been clear," a spokeswoman for the Attorney-General, Daryl Williams, said. "To deny the opportunity for further and subsequent warrants would play into the hands of terrorists."
But Labor pointed out yesterday that Mr Williams's comments in a speech in October was based on rolling 48-hour warrants, to be capped at a week.
"The maximum period for which a person can be detained will be seven days," Mr Williams said then. "People will not be able to be detained indefinitely."
A spokesman for Senator John Faulkner said yesterday that the Government's "clear and publicly stated position is no person could be detained for more than seven days". "The bill must reflect this important principle," the spokesman said.
Without the questioning by Senator Bob Brown of the Justice Minister, Senator Chris Ellison, last Thursday, it is possible the laws would have passed without the possibility of successive warrants being raised.
Senator Brown described the provisions for multiple warrants as very dangerous.
"It was obvious to me that there was nothing in the legislation to stop ASIO from getting second or third or fourth seven-day warrants to detain the person for questioning. Without the intense questioning of Senator Ellison the business of effectively open-ended warrants, timeless warrants would not have come to the fore, the bill would have been through last week and those clauses would have stood."
Professor George Williams from the University of NSW said the possibility of seven days' detention was "bad enough".
"That this might be followed by
subsequent week periods is indefensible."
The government's proposal to allow ASIO to detain people for a week for questioning was passed, while suspects will have the onus of proof put on them.
Labor backed the laws, but signalled that if it regained power it would cut the questioning period to three days and reverse the onus of proof.
Attorney-General Daryl Williams said despite the huge changes to his proposed laws, the government had never wavered in its efforts to give ASIO more powers.
"I hope the powers under the legislation never have to be exercised," he said.
"But in the extraordinary circumstances in which the powers under the legislation would be exercised, significant and comprehensive safeguards exist to prevent abuse."
Independent MP Peter Andren said he only reluctantly supported the bill because the Senate had amended the more draconian provisions.
Opposition Leader Simon Crean said despite some problems, the laws had struck the right balance.
"We do need tough new powers to stop terrorists and terrorism but we shouldn't compromise our basic democratic rights and freedoms in the process," Mr Crean told parliament.