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Senate Legal and Constitutional Legislation Committee
Anti-terrorism Bill No. 2 2005
17 November 2005

  • Thank you Madam Chair, Committee members.
  • The AFP representatives will be able to elaborate on the detail of the bill, but I would like to make a couple of comments, including on the few provisions that directly apply to ASIO.
  • ASIO supports the introduction of the Anti-terrorism Bill as part of an evolving legislative framework directed at strengthening Australia's counter-terrorism capabilities.
    • At the end of the day, it is essential that intelligence and law enforcement agencies have the capacity to effectively investigate potential threats and, where necessary, to intervene at an early enough stage to prevent a terrorist act from occurring.
  • It is a matter of public record that Australian interests are at threat from terrorists. It is also a matter of public record that ASIO assesses a terrorist attack in Australia is feasible and could well occur.
    • A number of people in Australia are facing terrorism-related charges. As these matters are now before the courts it would be inappropriate for me to comment specifically on these matters.
    • I would note, however, that the threat has not abated and we need to continue the work of identifying people intent on doing harm, whether they are already in our community or seeking to come here from abroad, or to attack Australian interests overseas.
  • I would also point out that the nature of the threat we face is not static.
  • Just as terrorist organisations and groups learn from past experience and adapt to the counter-measures that governments implement, so also do we need to continually revise the way we go about the business of countering the terrorist threat.
    • Part of that process involves ensuring that the legislative framework under which we operate is commensurate with the threat we face.
    • This is essentially what the Parliamentary Joint Committee on ASIO, ASIS and DSD is doing in its review of ASIO's questioning and detention powers.
  • The provisions in the Anti-terrorism Bill that have attracted the most public debate - the preventative detention and control orders - are matters for the AFP and State and Territory police forces.
    • ASIO shares relevant intelligence with law enforcement agencies under provisions of the ASIO Act.
    • Intelligence can be made available to law enforcement agencies in connection with the proposed preventative detention and control order regimes, if this is consistent with ASIO's functions.
    • But the application of the proposed regimes are matters for the relevant law enforcement agencies to address.
  • The Anti-Terrorism Bill also proposes several amendments to the ASIO Act which are designed to strengthen ASIO's existing warrant regime. These include:
    • clarifying a number of definitions;
    • extending some periods of warrant validity to increase operational flexibility and responsiveness - not to actually increase the existing powers; and
    • clarifying provisions relating to providing false and misleading information under an ASIO questioning warrant.
  • I note from the Committee's hearings on Monday that a number of witnesses have made comparisons with ASIO's questioning and detention powers.
    • It is important to emphasize that ASIO's questioning and detention powers are directed entirely at the collection of intelligence in connection with terrorism offences.
    • The preventative detention and control order regimes will operate quite separately.
    • They are intended to enhance police powers in responding to an imminent threat of a terrorist act occurring or when police suspect someone is engaged in terrorism activities.
  • The questioning and detention powers which were passed in 2003 by both Houses of Parliament have proved important in progressing a number of investigations.
    • ASIO has not yet had to use the detention powers which were always intended to be used only in the most exceptional circumstances and, accordingly, can only be used in the limited circumstances prescribed in the ASIO Act, including where the subject of a detention warrant may:
      • be a 'flight risk';
      • alert another person involved in a terrorism offence that the offence is being investigated; or
      • destroy, damage or alter a record or thing that they may be required to produce.
    • These circumstances have not yet arisen but that does not negate the importance of this provision as one plank in our overall counter-terrorism strategy.
  • I would like to reassure the Committee and the public that the existing safeguards on ASIO's powers will not be affected by this new legislation.
    • ASIO will continue to operate under a tried and proven oversight and accountability regime.
    • Anyone who is concerned about ASIO's activities or actions will continue to have the right to raise their concerns with the Inspector-General of Intelligence and Security, an independent statutory authority with very broad powers.
  • I am happy to respond to your questions about those aspects of the bill that relate directly to ASIO although, as always, I am unable to go into detail on specific operational matters.