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Thursday, 12 December 2002
Page: 8089


Senator IAN CAMPBELL (Parliamentary Secretary to the Treasurer) (3:45 AM) —I move:

That the committee does not insist on its amendments (1), (2), (8) to (10), (12), (16) to (28), (30), (32) to (37), (42), (44) to (47), (51) and (54) to (56) to which the House of Representatives has disagreed and agrees to the amendments made by the House in place of amendments (4) to (7), (13), (40), (41) and (43).

In speaking to the motion I would like make some points, which I will make as briefly as possible, because I think they have been made earlier this day in this place, and there has been a debate in the other place in the meantime. At the outset, let me say that my colleague Senator Ellison has had to return to Western Australia and he has asked me to handle this bill on his behalf. I know he would have preferred to have been here, so I apologise on his behalf and will handle the bill for now.

The government's position on the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 has always been emphatically clear. We need this legislation to give our intelligence agencies what we regard—and I think it is so regarded across the chamber—as vital tools to deter and prevent terrorism. The bill has been returned from the House of Representatives in a form that the government believes will ensure that it is both workable and, very importantly, constitutional.

For the reasons that have already been given in this chamber by Senator Ellison, the Minister for Justice and Customs, the opposition's amendments passed in the Senate rendered the bill unworkable and unconstitutional. I would like to reiterate that the government is very serious about protecting the Australian community at a time when there is no doubt—and this is agreed across the chamber—that serious risks do exist. The government—and I speak here particularly of the Attorney-General and his team—has bent over backwards to accommodate many of the suggestions that have come from the committee processes of this parliament, from both the joint and Senate committees, that we believe will strengthen and enhance the operation of the bill. All senators know that the government has already significantly amended the bill following those committee reports and the many constructive suggestions within those reports.

The government has repeated—and I say it again now—that it cannot and will not accept amendments that render the bill impotent or unworkable. This does nothing to help protect the community from terrorism. The opposition has made some extraordinary statements in the House of Representatives about the government's position on this bill. Our position has been quite clear—it has not changed, it has not wavered and we do not intend to waver now.

The bill deals with those circumstances where coercive questioning and detention, subject to very strict controls, is necessary in the interests of public safety. For example, it may be necessary to detain a person to prevent them from informing others about ASIO's investigations or to allow urgent intelligence investigations to continue unimpeded. In some situations the capacity to detain will in fact be critical. It would be absurd to not have a power to detain a person for a limited period in a situation where that might put public safety at risk. Those at the front line of meeting this threat tell us that in order to protect the community from this kind of threat they need the power to hold a person incommunicado, subject to strict safeguards, while questioning the person for the purpose of intelligence gathering. We accept this need but the opposition clearly does not.

The government has rejected the opposition's amendments that would limit questioning under a warrant to four hours, with limited capacity to extend beyond that period. The first extension could be for eight hours. A second extension of eight hours is only available where there is a threat of an imminent terrorist act. This, we believe, is an absurd proposition that does not allow sufficient flexibility to enable our intelligence agency to do its job. This is but one example of the differences between the opposition's position and that of the government. The government's amendments reinstate the important provisions that allow coercive questioning and detention—subject, I reiterate, to strict controls. We believe that this is necessary in the interests of public safety.

We will not accept amendments that go to matters of fundamental principle. The Attorney-General has outlined those matters repeatedly and emphatically, as has the Minister for Justice and Customs, Senator Chris Ellison, who has made the government's position quite clear. In particular the government have stressed that we cannot and will not accept amendments that make the bill at best unworkable and at worst unconstitutional. We are taking a stand because we believe it is very much in the interests of protecting Australian citizens at a time when there is a clear recognition across all political parties of a significantly increased risk from terrorism. We want to deliver to the Australian people a bill that will operate effectively in this new terrorist environment with which we are all faced. The government will not pretend to the community that what the opposition proposed will provide another layer of protection against terrorism when we know the opposition's package of amendments effectively renders it useless and quite seriously open to challenge.

There was some debate in the other place about advice about the constitutionality of provisions, particularly relating to the constitutionality of appointing sitting judges to the role of a prescribed authority under the act. There seemed to be some confusion, at the very least, as to that advice. I believe that it is appropriate that the advice that was provided to Senator Faulkner earlier today—or earlier this evening is probably more accurate, or tonight—should be—


Senator Faulkner —Earlier today is actually right.


Senator IAN CAMPBELL —Okay. That's fine. But I think it is probably in the interests of an informed debate and it would get rid of any confusion—


Senator Robert Ray —Don't say it arrived yesterday when it didn't.


Senator IAN CAMPBELL —No, I am trying to get my words right as I watch the clock and look at the date. Regardless of that, it should be on the record. I seek leave to incorporate the advice from the Attorney-General to Senator Faulkner.

Leave granted.

The document read as follows

ATTORNEY-GENERAL

THE HON. DARYL WILLIAMS AM QC MP

>2/11508

PRIVATE AND CONFIDENTIAL

Senator the Hon John Faulkner

Leader of the Opposition in the Senate Parliament House

CANBERRA ACT 2600

Dear Senator Faulkner

I refer to your letter about the Opposition's amendment to the prescribed authority provisions in the ASIO Bill.

Our advice from the Deputy Chief General Counsel, Mr Robert Orr QC, is that the High Court is likely to find your proposal to use current State judges as prescribed authorities unconstitutional for the following reasons.

The prescribed authorities play a role in the supervision of the questioning of the person the subject of a warrant. If this function were given to a current federal judge there would be a very significant risk that this function would be found to be incompatible with the judge's performance of judicial office.

This is because the role proposed for a prescribed authority heavily involves them in the interrogation process. We are advised that there would be a very strong argument that the role of overseeing an interrogation of a person on security matters was incompatible with judicial office, in particular the role of determining the guilt of such a person on security offences. Mr Orr QC has stated that to give the role of `prescribed authority' to current federal judges would give rise to a very significant risk of unconstitutionality.

Mr Orr QC makes a distinction between the role of issuing authority and prescribed authority on the basis of the High Court decision in Grollo v Palmer (1995)184 CLR 348. In that case the High Court held 5-1 that the issuing of a telecommunications interception warrant by a federal fudge was not unconstitutional. One of the reasons for this was that their exercise of this function was not incompatible with their performance of judicial office. But the role of prescribed authorities is very different from simply issuing a Warrant. In Mr Orr QC's view while the High Court is likely to maintain the position in Grollo, there is very little chance that the Court would expand the range of activities which Judges can properly undertake; rather the trend in cases like Wilson v Minister for Immigration (1997)189 CLR 1 is to contract the range of activities which are compatible with judicial office. To give the role of `prescribed authority' to current federal judges would give rise to a very significant risk of unconstitutionality.

Mr Orr QC has also expressly stated that the risk in relation to current federal judges also exists in relation to current State judges. State courts exercise federal judicial functions. In

Kable v DPP (1996)189 CLR 51 the High Court held provisions of the NSW Community Protection Act 1994 invalid because they gave a function to the NSW Supreme Court (a Sate Court which exercises federal judicial power) which was incompatible with judicial power principles under the Australian Constitution. In particular the functions were incompatible with the integrity, independence and impartiality of the Court, and sought to `borrow' the status of the Court to undertake non-judicial functions. The NSW Act considered in Kable also provided for detention.

Given that the Opposition's proposed s.34B(2) will be Commonwealth legislation which will give federal executive functions to State judges who will also be exercising federal judicial power, Mr Orr QC's advice is that there is a very significant risk that the High Court would find this proposal in relation to State judges in breach of the Constitution. This is particularly so because of the nature of the function which, as I have mentioned, is likely to be held to be incompatible with that of a judicial office.

Mr Orr QC's unqualified advice is that there would be a very significant risk that the High Court would find that appointing current State judges as prescribed authorities was unconstitutional. This is not a risk the Government is willing to run.

Yours sincerely

DARYL WILLIAMS


Senator IAN CAMPBELL —I will quote the letter in relation to this issue because I think it is an important policy difference. I do not think it should be an insurmountable one, because I am sure that the opposition would want to ensure that, if you put this regime in place, it is not challenged at the first hurdle by a challenge to the authority of the issuing authority or to the authority of the prescribed authority. Daryl Williams, the Attorney-General, quoted the advice of Robert Orr QC in the letter to Senator Faulkner. He said:

Mr Orr QC makes a distinction between the role of issuing authority and prescribed authority on the basis of the High Court decision in Grollo v Palmer (1995)184 CLR 348. In that case the High Court held 5-1 that the issuing of a telecommunications interception warrant by a federal fudge was not unconstitutional. One of the reasons for this was that their exercise of this function was not incompatible with their performance of judicial office. But the role of prescribed authorities is very different from simply issuing a Warrant. In Mr Orr QC's view while the High Court is likely to maintain the position in Grollo, there is very little chance that the Court would expand the range of activities which Judges can properly undertake; rather the trend in cases like Wilson v Minister for Immigration (1997)189 CLR 1 is to contract the range of activities which are compatible with judicial office.

In this intervention in the debate I make the point: why would you at this time, when we have all agreed—and I listened to a most eloquent speech by Mr Kim Beazley in the other place earlier this evening when he talked about the importance of getting this regime in place now—put in place a regime that walked you into a ground of legal vagueness? Why would you do that? The Australian Labor Party in the other place tabled advice from a former Solicitor-General saying that he thought it was okay. We have unequivocal, unqualified advice from Robert Orr QC, the Deputy General Counsel, saying—


Senator Robert Ray —Table it then. Put it down.


Senator IAN CAMPBELL —I have just incorporated the letter which says that there is significant doubt. The point I make is that you can have one QC saying one thing and one QC saying another thing, but why would you walk into this area of vagueness? It is an absurdity. It is silly to do it. I think it is crazy to have this argument where you have this vagueness and I implore the opposition to consider their position, to heed Mr Beazley's warning and to say, `Let's put in place this regime here tonight so it is in place for Australia and for the benefit of the Australian community as we go into the Christmas season; let's not play political games over these sorts of disagreements when we can have this legislation in place before the night is out.'