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Tuesday, 23 September 1997
Page: 6765


Senator BOLKUS(6.03 p.m.) —I might take that as an invitation from Senator Murray to just talk briefly about our amendments and arrange this committee stage into a cognate debate on the Democrat and opposition amendments. As I said in my speech on the second reading and as I said earlier today, we do not accept the government's contention that there is anything like a crisis in this area. There were 740 warrants issued in the last reported financial year. Though there have been some judges who have declined to issue warrants, it is obvious that the wide body of judges are performing this function entrusted to them by the parliament in a way they should do in accordance with the law.

This is not just our concern. As I said yesterday, the President of the New South Wales Law Society, Patrick Fair, said on 22 July:

Because of the necessity of ensuring that appropriate safeguards of privacy are maintained, along with the integrity of innocent conversations transmitted by telephone, the Law Society has long expressed the view that any warrant to intercept these communications should only be granted by a judicial officer. Accordingly, the Criminal Law Committee does not support the devolution of the power to issue telephone interception warrants to members of the AAT.

There is concern, there has been concern and there should be concern that governments and parliaments do balance the requirements of surveillance and law enforcement with the protection of the innocent. I think over the last 14 years or so since this legislation has been in place we have had a system in place which, it has to be said, the law enforcement agencies have been able to work within and work well within. I think 740 warrants a year is a fair indication that the system is working to the satisfaction of law enforcement interests. Without knowing the actual number of warrants rejected, I think it is fair to say that some innocent people have also been protected during the course of the operation of this legislation.

The Attorney argues workload problems. But let us acknowledge that this government has slashed back funding for the courts. The Chief Justice of the High Court has been very explicit about his concerns. Other courts—family courts and federal courts—have also had the same pressures applied on them. Although you could argue that in actual terms the resources have been static, in real terms they have fallen behind. In a real sense federal courts have had to pick up more and more jurisdictions. The Federal Court itself, for instance, has over recent months had to assume responsibility for, amongst other things, industrial relations, human rights issues and a growing interest and concern in immigration related matters.

Whereas the volume of work in that particular court has increased, its real resources have not increased. In fact, they have remained static in actual terms. So the courts do have more responsibilities. What this government should be doing in the interests of administration of justice is ensuring that the slash and burn policy when it comes to justice is not continued. If the government had adequately resourced the courts, and were it to do so in the next financial year, then you would not have this sort of pressure. But I suppose 740 warrants do not amount to more than a handful per judge per year.

The second concern that was raised by the Attorney was a constitutional one. It was raised again here today. I have to say that, in his public statements, both inside and outside the parliament, the Attorney has been quite misleading on the constitutional point. He talks about the constitutional problems raised by the Grollo case, but the Grollo case was explicit. In the Grollo case, which was a couple of years ago, the High Court held six to one that the exercise of the power to issue telecom intercept warrants by a judge, provided certain basic conditions of fairness and so on were met, was not inconsistent with the exercise of judicial power.

That was reinforced by the High Court last year in the Wilson case. In that particular case, all the judges noted that the issuing of telecom intercept warrants was not an issue before the court in that particular case, but the court specifically accepted the authority on the subject—namely, Grollo's case.

Constitutionally, it is clear from recent High Court decisions that there is not the problem that the Attorney-General pretends there to be or that the Attorney-General's Department pretends there to be. In fact, I should say some parts of the Attorney-General's Department, because, as I mentioned yesterday, Chief General Counsel Mr Burmester only recently, in respect of the Crimes Amendment (Control Operations) Bill 1996, gave an opinion. I will read out what he had to say about Grollo. He said:

. . . the majority was prepared to uphold the particular exercise of power in question as it was the judges "deciding independently of the applicant agency whether an interception warrant should issue that separates the eligible judge from the executive function of law enforcement.

He continued:

It is the recognition of that independent role that preserves public confidence in the judiciary as an institution."

The Chief General Counsel said that the High Court was prepared to uphold this particular exercise of power. So, on that particular ground, though the Attorney-General tries to blow it up into a concern, the law is quite clear—six to one.

The third argument the Attorney puts up to support his proposal is that it is, in some way, inappropriate for judges to issue warrants and then to be subject to judicial review by judges within their own court. That is and has been part and parcel of our judicial system. Judges are always susceptible to review by other judges of the same bench on a full bench. That happens quite consistently. Our argument is that the Attorney-General really is clutching at straws when he tosses up this third argument to support his agenda.

In essence, and I must put this on the record, we have here a recycled claim from the judiciary. I say `recycled' because it was one that was put up to us when we were in government. I think it has been put up annually for the last four or five years by the judges. The previous government, though it was suggested to us, did not feel there was a need for it. The figures that the minister has already spelt out today support the fact that we were right in our contention that there was not a need for it: 740 warrants issued by judicial officers of the federal jurisdiction over the last reportable financial year.

For those reasons, we oppose this. We oppose this for those broader concerns that led to the framing of this legislation in the way it was framed some 14 years ago: a concern to not hinder but to assist law enforcement agencies and also to protect the public from intrusiveness. We felt the protection was best maintained if you had a relatively high ranking judicial officer to scrutinise the issuing of the warrant. No reason has been proffered in this recent debate to suggest that we should deviate from that balance that has served the public and the parliament well over the last 14 years. It is for those reasons that we oppose the government's initiatives in this area.


The TEMPORARY CHAIRMAN (Senator Calvert) —The question is that the Democrat amendments be agreed to.


Senator Bolkus —I seek the indulgence of Senator Harradine to allow the opposition amendments to be put first.


Senator Harradine —You may have a very good case.


The TEMPORARY CHAIRMAN —Is it the wish of the committee that further consideration of Democrat amendments Nos 4, 8 and 10 be postponed? There being no objection, that course will be followed.

The question now is that items 6, 19, 20, 24, 25, 27 to 39 and 47 to 50 of schedule 1 and items 1 to 8 of schedule 2 and items 11 to 13 of schedule 3 stand as printed.

   Question put.