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Wednesday, 11 December 2002
Page: 7686


Senator ELLISON (Minister for Justice and Customs) (10:50 AM) —A number of issues arise. Firstly, I cannot agree with the Leader of the Opposition in the Senate that I made a conflicting statement in relation to parliamentary privilege. Perhaps that could be pointed out to me. But, certainly—


Senator Faulkner —You indicated that you were seeking advice.


Senator ELLISON —No, I answered that. Senator Brown asked me a question and I distilled that into two different aspects: whether a person who is a member of parliament could be the subject of a warrant, and then what line of questioning could then ensue. They were the two aspects. I subsequently indicated what the position was. So I am not getting any further advice, because I have answered the question. I have said that a member of parliament can be the subject of a warrant and that they can be questioned. Furthermore, I would find it very hard to envisage any situation where parliamentary privilege could be claimed successfully by the member against such questioning.

However, I did point out that section 16, I think it was, of the Parliamentary Privileges Act—and I am trying to remember the correct term used in the section—relates to proceedings in parliament. I cited the O'Chee case, which went to the High Court, and the circumstances surrounding that case. Those circumstances demonstrated the ancillary nature, if you like, of the problem, to the extent that the subject matter there was not what former Senator O'Chee said in the chamber but what was provided then for the purposes of asking the question. That was the nub of the O'Chee case, as I recall. What I have said here today is that the only possible parliamentary privilege—I say `possible'; I cannot think of an instance where it could be claimed successfully—would have to fit the criterion of asking a member of parliament a question about proceedings in parliament.

As to notice, there is a resolution of the Senate which requires that if a warrant is to be issued on a senator then the President of the Senate has to be notified. As to the provisions for the other place, I am not aware of any, and I will take that on notice. In relation to the regime of the bill, can I say that, as Senator Faulkner has pointed out, this is an intelligence gathering regime. It is important to remember that, for the Attorney-General to consent to the request for the issuing of a warrant, the Attorney-General must be satisfied that there are reasonable grounds to believe that the issuing of the warrant would substantially assist the collection of intelligence that is important in relation to a terrorism offence. That is a fairly substantial requirement. Furthermore, the Attorney-General must be satisfied that relying on other methods of collecting that intelligence, such as a wire-tap or questioning a person, would be ineffective.

In the normal course of events, if you were dealing with someone who was innocent and had unwittingly dealt with a group who were suspected of terrorist activity, that person could be questioned and no doubt would be. But the question of a wire-tap is, again, another issue, because there are requirements before you can take such a measure and, of course, it has to be on the basis of grounds being made up. The requirement remains that you still have to rely on other methods first before you resort to this warrant. It is a warrant of last resort, as we have said—and we have always said that. But, of course, you may well have someone who is a sympathiser, who has relevant, important information and who, if questioned, might in turn pick up the phone as soon as you have walked out the door and phone those people and say, `The authorities were in here asking questions about you.' It may be in a circumstance such as that that you need to rely on these powers. But it is a warrant of last resort, and I stress that those grounds have to be made out before the Attorney-General can consent to the request for such a warrant by the Inspector-General.

I think that the question of parliamentarians has been canvassed adequately. The regime that is being proposed here is one of intelligence gathering, as we have said, to provide that essential support to our security agency, ASIO. The requirement to answer questions is nothing new. That is contained in a number of pieces of legislation, and I think that was mentioned earlier in the debate. The National Crime Authority is one case that I have personal knowledge of, and that was also dealt with recently in the bill dealing with the setting up of the Australian Crime Commission. That is part and parcel of this regime.