Mr McCLELLAND (Barton) (12.51 p.m.) —I rise to speak in support of the government's Australian Security Intelligence Organisation Amendment Bill 2004. The bill forms part of a regime for the regulation of ammonium nitrate and arises essentially from agreement reached between the Commonwealth and the states in June of this year. There is a point of clarification that the opposition will be seeking to make by way of a minor amendment, which I understand my office is making available to the Attorney-General's office, probably as we speak, for the Attorney-General to consider. Certainly we will endeavour to have that occur during the course of the debate, and I will outline it shortly. [start page 36]
As I mentioned, on 25 June 2004 at the Council of Australian Governments' review of hazardous material it was agreed that a national approach was required to control access to and transportation of ammonium nitrate other than for specifically authorised uses. Regrettably, we would all be aware that ammonium nitrate is a readily available substance that has a track record in terrorist bombings. Ammonium nitrate was used in Oklahoma, in North Korea and against Australian citizens in Bali. From reports, ammonium nitrate was in the prevented massive explosion attempted in Singapore. This is a big issue in Australia. Australia produces around 900,000 tonnes of ammonium nitrate per year. It is readily available and commonly used in the mining industry and as a fertiliser in the agricultural sector.
The Council of Australian Governments recognised the clearly obvious threat that this ready access to ammonium nitrate can cause, but resolved that a balanced approach was required to balance security needs of all citizens on the one hand and the needs of industry on the other. As I understand it, in that context the regulatory regime will apply to `security sensitive ammonium nitrate', those substances that have 45 per cent or more ammonium nitrate content.
The Attorney-General indicated on 12 January this year that the Commonwealth would develop a model scheme based on Queensland initiatives. In June this year the states indicated that they would use their best endeavours to have in place by 1 November this year the legislative underpinning for state provisions as part of this national scheme. Regrettably, that deadline has only been met by two states: Queensland and Victoria. While, inevitably, I will give the Commonwealth government a serve in the course of this speech, I think I am also entitled to give the states a bit of a whack for not moving more quickly in the context of a very serious issue.
Obviously, a scheme to protect Australian citizens from the potential misuse of ammonium nitrate will be effective only at a national level. There is no point having a scheme partially implemented through only being implemented in some states, with the result that ammonium nitrate could simply be purchased in other states or, indeed, purchased in small quantities from various states over time to then be consolidated for a bombing attempt. Again, we would like to see this bill move along more quickly.
I pause at this point to address some criticism to the Commonwealth and to point out that it has taken the view that it is essentially a matter for the states to regulate the sale, storage and transportation of ammonium nitrate. With respect, I think that is too narrow an interpretation of the potential Commonwealth power in this area. We have seen legislation based on or consistent with a whole range of some 11 anti-terrorist related international treaties. I do not think it would have been difficult to find a constitutional authority under section 51(xxix) of the Constitution: a foreign affairs head of power to underpin a national legislative scheme. In particular, I would have regard to the International Convention for the Suppression of Terrorist Bombings. While that proposes quite a specific criminal regime, in article 15 it refers to state parties taking preventative measures. I would have thought that it would not have been difficult to expand on that concept for the purpose of introducing federal legislation.
In that context I note the general view, which I think is correct, that the federal legislation needs to be a reasonable and appropriate means of giving effect to the objectives of a treaty. Advice to the Senate legal and constitutional committee in 2000 from the Attorney-General's Department was to the effect that it may not even be the case that a national obligation imposed by a treaty is necessary for there to be effective Commonwealth power. Rather, Commonwealth legislation could be consistent with recommendations of international agencies and further international objectives even if those objectives have not been reduced to binding obligations under a treaty.
By way of comment I believe that we could be more proactive at a federal level. It is always good to regulate these things by way of consensus, if it can be reached. I will go through a bit of the history of the regulation of ammonium nitrate shortly, but I think it is fair to criticise the overall approach of not only the Commonwealth but also the states that have had a pace that is all too leisurely given the potential consequences for the Australian public.
Perhaps by way of an aside, but again in the context of preventative measures against possible terrorist attacks, I note that the National Security web site confirms that Australia is a party to 11 of 12 international treaties aimed at combating terrorism, which is appropriate. But the web site notes that Australia is not a party to the international Convention on the Marking of Plastic Explosives for the Purpose of Detection that was signed in Montreal in 1991. Plastic explosives are something quite distinct from ammonium nitrate, but nonetheless the government is now at a point in time when it should be explaining to the Australian people why we have not entered into that treaty.
I think Senator Sandy Macdonald said, about two months after September 11, that the government was looking not only at that treaty but at two treaties which we have subsequently entered into, one relating to financing terrorism and the other, which I have referred to, regarding terrorist bombings. He expressed the intention of the government to also enter into the treaty relating to plastic explosives. Given the time that has elapsed since that statement of intention, it is now the point in time when the government should be re-examining entering into that treaty and explaining to the Australian people why we have not done so. Having levelled some criticism at the federal government, again I call on those states who are yet to implement their legislative regimes as part of this national scheme to regulate the storage, transportation and general handling of ammonium nitrate to redouble their efforts to do that as quickly as possible. [start page 37]
I note that the bill as drafted—and this gets into the area of the amendment—has been drafted to assist in the regulation of substances that may in the future be identified as being dangerous in the sense that they may potentially be used as part of a terrorist act or a criminal act. Again, that is sensible and appropriate. We agree with that approach. We note that COAG in particular has recently commenced examining at least two substances for that purpose.
We also note that this legislation is enabling in the sense that it enables ASIO, having been called upon by states, to assist states to conduct a security check in respect of someone who may apply for a licence. In other words, the states are quite clearly in a position where they can check the criminal records or potential criminal records of a person who applies for a licence, but they will require the assistance of ASIO to conduct a broader security check. Currently section 35 of the ASIO Act enables ASIO to provide security checks in respect of a place or in respect of information. While ammonium nitrate will obviously be stored at a place and in that sense could be the subject of ASIO providing security advice, the reality is that there will be a whole range of activities—including importing, exporting, transportation, storage, sale, purchase and so forth of ammonium nitrate—that are not encompassed within the term `place', and are certainly not encompassed within the term `information' as currently contained in section 35 of the ASIO Act. Similarly, section 39(2) of that act clarifies that the Commonwealth can by other measures restrict, on a temporary basis, a person's access to a place or to information if they receive interim advice that there may be a risk factor. I have somewhat paraphrased that term as it is set out in section 39(2).
In summary—and, while it is perhaps pedantic, it is quite central to the bill—the inclusion of the term `thing' in addition to `place' and `information' is appropriate in the sense that obviously ammonium nitrate is a thing. The term `thing' will also enable the future regulation of, or schemes for the regulation of, other dangerous substances. Undoubtedly, people who may be affected by this legislation, or at least by the regulatory scheme that these enabling provisions are part of, may be concerned at the width of the term `thing'. As was pointed out by the Attorney-General in his second reading speech, the term is actually to be read in the context of other provisions of both section 35 and section 39 which require a person's ability to perform an activity in relation to or involving a thing to be, as the legislation says, `controlled or limited on security grounds'—in other words, controlled or limited by some other legislative or regulatory regime that is quite separate and distinct from the ASIO Act.
The ASIO Act, in this context at least, simply empowers ASIO to provide a service to an agency by conducting security checks pursuant to a request made under one of these schemes. Nonetheless, there is some concern in the community that the expression `thing' may be too broad and indeed as currently framed may result in the situation where a state, a territory or perhaps some other Commonwealth agency decides for security reasons to regulate something that may not generally find acceptance in the community, or at least requires further debate.
For that reason the amendments that we will be proposing for sections 35 and 39—which I will communicate to the Attorney-General—clarify the term `thing' by substituting the term `proscribed thing'. In the definitions in section 35, after a phrase which already exists there, `prescribed administrative action', we propose to simply include a definition for `proscribed thing'. The definition we will propose is: a thing proscribed by regulation under this act. We believe that gives the Attorney a very broad power to act urgently, if required, to identify a substance or, literally, a thing, but it would be the subject of consideration by the parliament in the context of it being a disallowable instrument. We think that would go some way to ensuring that urgent action could be taken by the Attorney-General, which would be appropriate, but it would provide for at least some degree of oversight or debate as to whether the listing of the substance or thing was appropriate. As I said, that is a proposition that we will be putting to the Attorney-General.
By way of concluding my remarks, I say that we also have concerns regarding other areas where the Commonwealth has direct responsibility in respect of transportation generally, but specifically in respect of the transportation of ammonium nitrate. For instance, it was pointed out to a Senate committee that on the day that the Maritime Transport Security Bill 2003 was introduced, 18 September 2003, a foreign ship called the Henry Oldendorf, which carried over 10,000 tonnes of ammonium nitrate, as well as 100 tonnes of diesel fuel—a potentially lethal cocktail—was transporting these substances around Australia's coastline. It was a flag of convenience vessel. It was registered in Monrovia and was presumably operating under a single voyage permit issued by the federal government. Apparently, amongst the crew of 27 there were different nationalities: Indonesian, Indian, Filipino, Ghanaian, Egyptian, Turkish and Maldivian—an international crew on board this flag of convenience vessel. But we cannot be naive. The potential for a terrorist incident—particularly with crew coming from areas where, regrettably, there can be extremist organisations present—is a concern indeed. [start page 38]
We believe that there is a conflict between the need to regulate the transportation, and in particular the transportation by sea, of dangerous substances and the government's encouragement—and we believe it amounts to encouragement—of foreign-flagged vessels plying their trade on Australia's coastline. We think in these heightened security times that such dangerous substances should, in the national interest, unless exceptional circumstances exist, be desirably carried by Australian shipping, with Australian seafarers on board. Indeed, in these heightened times of security, we believe that the greater the number of Australian eyes and ears that we have around the Australian coastline the safer we will be.
In that context, and just specifically while it is relevant to ammonium nitrate being a dangerous substance clearly carried by sea, I do not propose to reopen the debate—because I would meet with some objection—as to whether or not Australia should appropriately have a dedicated coastguard. At the very least, I believe the government needs to look at the concept of sea marshals. The government has introduced air marshals, but the reality is that tremendous damage can be done to a port—for instance, to port facilities, the population around a port and, indeed, a national economy—by a potential terrorist activity involving a ship. I have visited the United States to be briefed on the activities of the sea marshals in the United States. If there is a vessel that is carrying a dangerous substance or, alternatively, a vessel about which some intelligence has been received, four sea marshals will board that vessel: two will take charge of the bridge and two will take charge of the engine room. Their brief, after conducting at least a cursory inspection and identification of any suspect crew and so forth, essentially is to ensure that they supervise the movement of that vessel and, if anything untoward happens—for instance, the boarding of that vessel by terrorists—to literally stop that vessel, both engine room and bridge, to enable a special forces response team to board and take charge of that vessel before it enters a port. Currently in Australia we have vessels often carrying dangerous substances, including, relevant to this debate, ammonium nitrate, entering deep into Australian ports before even a cursory security assessment is undertaken.
I note that there can be occasions when officers from the Australian Maritime Safety Authority can go out and board a ship to examine the seaworthiness of the ship, how the cargo is stored and so forth, given the nature of the cargo, but there can be no suggestion that those officers are trained to or expected to conduct anything of the same order as the response the United States sea marshals undertake. Prior to the last election, we costed what we believed would be a viable program in Australia. While these things are always subject to debate, in the overall scheme of things it was not a great expense. So again we would sincerely say that that is an aspect of policy that the government should re-examine.
As I said, we are concerned that it has taken such a long time to implement a regulatory scheme for ammonium nitrate. We were aware most horrifically after the bombing in Bali of the awful consequences of the misuse of ammonium nitrate. Certainly press reports throughout 2003 documented the ease with which this fertiliser could be used to make a substantial bomb. Indeed, in the time that it has taken to introduce a regulatory scheme—in fact just one month after the COAG meeting determining that a national scheme was needed—we learned that two tonnes of ammonium nitrate were stolen from the Virginia area north of Adelaide over the course of a 12-month period. Earlier in the year, South Australian police admitted that they might never find some 3.5 tonnes of ammonium nitrate reported stolen.
To put that in context, while we would hope that that ammonium nitrate is being used for fertiliser and is now being watered into the ground somewhere with wheat or some other crop growing through it, we have to bear in mind that it is reported that the Bali bombers used only about 150 kilograms of ammonium nitrate. When you are talking about 3½ tonnes that have not been accounted for, it is of concern. Computer modelling of a five-tonne fertiliser bomb detonated in the heart of one of our capital cities has predicted the potential loss of life of 900 people, with literally thousands more potentially injured. So it is a very significant issue requiring decisive action, and we believe it needs more urgent attention than it has been given—regrettably perhaps by all governments around Australia.
I note, for instance, that in February 2002 the then Attorney-General, Daryl Williams, for whom I always had quite some respect, was asked during a radio interview about the consequences of someone endeavouring to buy two tonnes of ammonium nitrate. He said, `Obviously that would start alarm bells and you would want to find out why they wanted to buy the explosives if they obviously weren't a farmer or if they're an urban dweller.' It has obviously taken too long until now, when we are talking about a federal aspect of a national legislative scheme. Indeed, I note that COAG first raised the issue of the potential misuse of ammonium nitrate in December 2002. I think on 12 January 2004 the Attorney-General promised the development of a national licensing regime. He said that such a scheme was developing according to program. [start page 39]
While we recognise that some negotiations have been necessary, we think the delay all around, quite frankly, has not been good enough. In that context we also express concern that COAG has only recently commenced conducting a review of other potentially hazardous material. Over three years have now elapsed since the September 11 attacks in New York and Washington and nearly a decade since we witnessed the consequences of the Oklahoma bombings. We think that all governments in Australia have an obligation to redouble their efforts to regulate these potentially hazardous and dangerous materials.
In summary, I am concerned that we are walking through upgrades to our security, but the reality is that when terrorists strike they certainly do not walk. I think we need to take these issues far more seriously that we do. We cannot afford to be neutered in this area by our federal system. It is an area that does require federal leadership and direction, as the Attorney threatened—and we agreed with him—with respect to defamation laws. This is an area where we believe the Commonwealth should be prepared to use the full extent of its potential legislative powers.