Senator BOLKUS(5.28 p.m.) —At this stage I would like to make a few comments. The minister, probably a bit loosely, said that the opposition is opposing the bill. We are not opposing that part of the bill that relates to the Police Integrity Commission in New South Wales. We are on the record as consistently saying that we think that body should come within the ambit of this act. As I say, the minister may have been a bit loose in his language, but I want to make that clear at this particular stage.

The second point I want to make is that we do not accept the argument put up by the government, nor do we accept the concerns of the Democrats in respect of this matter. The minister said that judges are declining. I think the facts will show that last year hundreds of intercept warrants were issued and there has been no hold up in the issuing of such warrants. The administration of justice has not been detrimentally affected by the reliance on Federal Court judges or federal judges to issue warrants under the act.

For the government to argue that judges are declining and warrants are not being issued is, I think, a misrepresentation of the situation. As I said, hundreds of warrants have been issued and the administration of justice is continuing at an acceptable rate. I say that to Senator Murray as well. He is concerned that the judges may go on strike. We do have a responsibility in this parliament to make the law, to balance all the policy considerations. We should not be pushed around by either judges or police forces. We should take their considerations into account and, of course, we should balance them in the context of all the concerns that we should take into account.

One of those concerns, of course, is to protect innocent Australians from excessive intrusiveness when it comes to telephone interception. That is particularly why, when this legislation was first framed, the balance was struck between federal jurisdiction judges having a role in issuing warrants and not judges of any other state or territory jurisdiction—and, in fact, no other person who does not hold a judicial office under the federal government.

So that is the balance that needs to be remembered. Our priority and our concern here needs to be to strike a balance again and to maintain a balance. Judges are in fact issuing warrants in their hundreds; they may in fact be knocking some back. I do not know how many have been knocked back, but it is within their ambit of operation and it is within their capacity to refuse the issuing of warrants in some circumstances. No-one has argued that any police investigation has been jeopardised by a particular judge going on strike.

The other concern raised by Senator Ellison is Grollo's case. Grollo's case was quite explicit. Six to one judges held that the exercise of the power to issue a telecom interception warrant by a judge was a valid exercise of power by the officers involved. It was not inconsistent with the exercise of judicial power. The High Court, of course, laid down some basic preconditions that needed to be met.

What the government, the Attorney-General (Mr Williams) and the Minister Assisting the Attorney-General (Senator Ellison) cannot shy away from is that that particular case held six to one that the exercise of this power was constitutional. Not only that, in Wilson's case last year the High Court upheld the previous authority on the matter—Grollo's case. So we have had two recent High Court rulings upholding the constitutionality of this particular provision.

What we have to direct ourselves to on this particular instance is the proposal being put up by the Democrats. When this legislation was first framed, it was clearly understood that we were talking here of a federal function. Telecommunications is very much within the constitutional responsibility of the federal government. I think it was held by all sides of parliament at the time that, as such a function, it should be in the control of the Commonwealth government.

As a consequence of that, we held that it should be federal judicial officers who should have the power to assess any application for an intercept warrant. I do not think we should deviate from that particular position now. There may be a need for more judicial officers to exercise discretion here—that is the argument that the government is putting up—but I, for one, do not, and the opposition does not, accept the argument that we should broaden the net and allow state judges to exercise power as well.

Firstly, we are talking about a federal function. Secondly, at the time that this matter was first being canvassed in this place, there was real and legitimate concern about allowing state judges with the influence—and some of them under the influence—of their police forces to have the capacity to issue warrants. There was concern at that particular time about what was happening in Queensland with Premier Joh Bjelke-Petersen and his lack of knowledge of the separation of powers. There was even concern about the corruption of some aspects of the police force in that state.

You could look at recent events in Queensland and say, `Well, there still has to be some concern about whether the separation of powers is understood in that particular state,' whether, in fact, there is sufficient separation from some judicial officers. We have seen the fiasco over recent months of commissions of inquiry in Queensland and how those commissions have been struck out on the basis of bias.

So I think the policy concern is still a real one, and I think the concern about whether the separation of powers is understood sufficiently enough in some areas of some state jurisdictions is a real one as well. I do not say that is a legitimate concern in respect of most state jurisdictions, but I do say that it can be a problem. It has proven itself to be a problem in some state jurisdictions over recent years.

So for those reasons, Senator Murray, we do not support your amendments. Not only for those reasons, though I accept that—

Senator Harradine —It is better than the government's from your point of view.

Senator BOLKUS —No, from our point of view it is better that it be maintained under federal control, as opposed to allowing the net to broaden into state jurisdictions.

The other thing about the Democrats' amendments is that, in essence, despite Senator Murray's exhortations, at the end of the day the Attorney-General would probably still find himself in a position where he would be relying on the same range of officers that the government has put up in its package. So we do not accept the Democrats' amendments for those two reasons and, as a consequence, we will not be supporting the Democrats' amendments.