Mr MELHAM(12.46 p.m.) —In the Senate on Wednesday 29 May 1996, the shadow Attorney-General and Minister for Justice, Senator Nick Bolkus, had this to say in relation to the Australian Labor Party's position on this bill:

The objective of this legislation is one that we are very deeply committed to.

Further on he said:

The principle, the objectives and much of the structure of this bill we want to see in place.

The only question is which is the best way to go and what accountability mechanisms are appropriate and can be appropriately invoked for this.

It is fair to say that that has characterised the debate by all parties since this bill was first introduced when we were in government. Indeed, it was a bill that was strongly sponsored by the then Minister for Justice, the honourable Mr Duncan Kerr, the current member for Denison, and he will be speaking in the debate later and lending his full endorsement to the bill.

From the initial introduction of the bill in the last parliament until now there have been a number of amendments. From my point of view—and it is acknowledged across the spectrum—those amendments are an improvement to what was originally put to the parliament and I applaud the Attorney-General and Minister for Justice (Mr Williams) for those amendments.

There are some of us on both sides of the House that still have some reservation about aspects of this bill. That needs to be looked at in context. I think the Attorney-General was right when he said that there are different principles involved here. As law makers we really need in some instances to compromise; you cannot be pure one way or pure the other. There are practical difficulties and we need to acknowledge them.

This bill certainly has had a lot of scrutiny. It will not satisfy some sections of the community; there will still be reservations about certain aspects. In that respect I would obviously counsel the Attorney-General and Minister for Justice to continue to monitor the operations of this bill because I fear, and I hope it does not come to pass, events will necessitate our revisiting this.

What I am now presenting are personal reservations. I want to put them on the record, acknowledging that I will be supporting this bill, as will the opposition wholeheartedly. The time has come to pass it; I do not think that we are going to be able to satisfy everyone's concerns. Indeed, at one stage the Democrats in the Senate put in some amendments that related to the concept of external accountability and the Labor Party was prepared to support those amendments. When they were withdrawn we understood why they were withdrawn. It is a debate between people who are trying to achieve the same purpose.

My reservations are encapsulated by some of the civil liberties groups. It goes back to the agreement provided on 3 June 1987 between the then Special Minister of State, Senator Michael Tate, and the then Minister for Industry, Technology and Commerce, Senator John Button. The minister in his second reading speech cited that section of the agreement. I think it is worth revisiting. The agreement provided that a written request was to be made to the Australian Customs Service:

. . . where certain persons, goods, ships or aircraft, suspected or known to be carrying or having an involvement in drugs, are required by the Australian Federal Police or the National Crime Authority to be exempted from detailed Customs scrutiny and control—

and here is the crunch part—

and in cases where there is to be substitution of imported goods.

So the original agreement really related to where goods were substituted, not the actual importation of illegal substances.What has happened as a result of the Ridgeway decision, I think it is fair to say, is that the authorities are receiving a bonus out of this legislation. That is where my concern is.

I think there is a point where it is inappropriate for the authorities to be not monitoring and reacting, which is what I prefer. I do prefer a monitor, react and substitution situation, rather than allowing people within the authorities to engage in the importation as part of a controlled operation. It is just something I would caution, because the last thing I would like to see is authorities engaging in a controlled operation and not having substitution there, and those goods going astray. That is where the problem will arise: that if there is a controlled operation in the future and it involves a large amount—and I am not talking about entrapment here—the authorities leave themselves open. But I recognise that it is not a perfect world.

The other reservation was police authorising police. That is where some people in the community took the view that we should adopt what is in the Telecommunications (Interception) Act to allow judicial authorisation. I acknowledge what the Attorney has said, that members of the judiciary are not all that happy with that and that there is a case before the High Court to do with the Hindmarsh Island situation and involving Her Honour Justice Jane Matthews. So I think that will see a further evolution as to whether the obiter that is in Grollo's case is, in fact, going to be the pronouncement by the High Court or not.

So it is an evolving situation. In the end, no side is going to achieve totally what they want. There is a balance in this bill. I think the authorities can legitimately say, `If the politicians want us to successfully stop the big importers, then we need these sorts of powers. We need legislative endorsement.' Basically, that is what the High Court said: if they are to engage in them, they need legislative endorsement.

The Labor Party is lending its support. This is really something that is not party political, it is not crossing political boundaries. It is people genuinely having different views. My background is one of a defender; I have never prosecuted in my life. I must say that I have a particular view, and it is based on personal experiences. Others, like my colleague the honourable member for Denison (Mr Kerr), have engaged in prosecutions; they have appeared on both sides of the fence. It is fair to say that he is probably more objective and balanced than myself when it comes to the criminal code.

It is fair to say that I tend to err on the side of the accused in terms of keeping those mechanisms in place. I subscribe to the view that it is better that 99 guilty go free, than that one innocent person is convicted. What frightens me is that, in the climate we have at the moment where you do have commentators who are uninformed, we get some bad cases and what happens is that bad cases make bad law and we go to the lowest common denominator.

I am not saying that about this legislation. The time has come for it to pass through the parliament. But I have put these reservations on the basis that what I would like to see—and I am sure it will happen anyway—is a monitoring of the situation. If the situation is out of control, it needs to be looked at. If it is a situation where the police forces themselves are vulnerable when these matters come into court because it is authorisation of police on police and so acquittals are occurring because of suspicions—and it is not hard to put that into the arena—then we might need to look at some other form of external authorisation. That is something that will only evolve with time.

I am glad the Attorney-General has included in the legislation the amendment that ensures controlled operations are used only for the purpose of investigating major unlawful activity. I know the honourable member for Dickson (Mr Tony Smith) will have something to say on this in the debate.

I suppose it is really in the eyes of the beholder. My view of major unlawful activity is a little different from that of other people's. I would like this legislation to be used to catch those people who are higher up the chain rather than to pick up someone down the chain. In my view, if it is not substitution and not just a monitoring and reacting situation, this situation—which allows the authorities to engage in what would otherwise be illegal activities—should be used sparingly. It should be reserved for those in the community whom we believe are engaging in criminal behaviour and not for those at the lower end of the scale. This is something that only time will tell; I am not here to be a prophet of doom.

I did not speak on this in the last parliament. Because of some aspects of the bill at that time, I took the view that silence was golden. In my position, I felt this was the best thing I could do. I appreciate the fact that the Attorney-General played a role in the previous debate in the last parliament. I understand his role and I have every confidence in the role that he will play as Attorney-General as far as this legislation is concerned.

To digress, I welcomed the appointment of Mr Williams as the Attorney-General and Minister for Justice. I do not think the Prime Minister, Mr Howard, could have made a better appointment for this particular office. I think his performance has been impeccable. I have one reservation, which I would like to put on the record, and it comes from someone with a legal background. I think the minister should be in cabinet. I come from that old school that says that the role of the Attorney-General is not that of a normal minister. The Attorney-General should be in cabinet; he should be giving proper legal advice to the cabinet. At times, this means that the Attorney-General is unpopular. He is not meant to be a populist; he is there to provide proper advice. He is there to restrain the rednecks in parliament and in the community; he is not there to adopt the populist view. As far as the constitution of the cabinet is concerned, the quicker the Attorney-General and Minister for Justice gets into the cabinet, the better. I will leave it at that.

Mr DEPUTY SPEAKER —I observe that the honourable member for Banks adheres to the principle that silence is golden. I commend that to him during question time.