Senator FAULKNER (Leader of the Opposition in the Senate) (7:10 PM) —I would like to deal with the technical issue that Senator Brown raises. I think it is section 34HB which prohibits anyone exercising authority under the warrant from questioning the person under the warrant; in other words, when the 24 hours of questioning is concluded the person is free to go. The minister, no doubt, will correct me if I have the wrong section, but I think that is the correct one. On the point in relation to seven days detention, although what Senator Brown said is technically not correct, I completely agree with the spirit of what was said, and that is why later on I will be proposing amendments to reduce the period of detention from seven days to three days. I look forward to the committee supporting those amendments.

I want to talk about the substantive issue that is before the chair at the moment. This goes back to a matter that was raised and debated last week in the committee stage. I am very pleased that now, with these new government amendments, this bill does not allow for rolling warrants. I have said from the very outset that fixing up this draconian piece of legislation, which was introduced into the parliament some 15 months ago, has been a tortuous process. It was almost the last straw when it appeared that there had been a reinsertion into the bill of a repeat warrant regime. It is true that it has taken some days to fix this breach of the government's publicly stated position on maximum detention periods, but I am not ashamed of that. From the beginning, we have said that it is crucial to ensure those sorts of weaknesses in the bill are corrected.

I think senators would be aware that the issue of rolling warrants of more than seven days is a concept that appeared to have been ditched in June 2002, after the report of the Parliamentary Joint Committee on ASIO, ASIS and DSD came down. That report contained a very important recommendation, recommendation 3. That recommendation was very clear. In its unanimous report the PJC recommended:

I reminded this committee of that recommendation when debate on this issue was deferred last week. It is true that on 19 September last year the Attorney-General accepted that recommendation. After noting the government accepted recommendation 3, the Attorney directly stated:

That recommendation was accepted. In fact the Attorney stated in parliament on 23 September 2002:

It is important to remember what the government was talking about. The government was explicitly referring to the period of detention, not the period of a warrant. In late 2002 the government proposed amendments to the bill, allowing for rolling 48-hour warrants adding up to a total period of seven days. The explanatory memorandum said:

As I have said before to this committee, you can take only at face value what is said by the Attorney and by the government. The Attorney went to the annual dinner of the constitutional law section of the New South Wales Bar Association and said:

It is reasonable for senators and the community more broadly to take those words at face value. The opposition did. We found during the debate in the committee stage that there was a lack of clarity about the issue of rolling warrants. It had to be fixed up. I do not forget what Mr Marshall, ASIO's legal adviser, said to the Senate Legal and Constitutional References Committee on 12 November. I understand that the minister has a difference in relation to the recommendations of that committee, but I take account of the evidence that was provided by officers. Mr Marshall said on that occasion on this issue:

Senator Robert Ray —Wise words.

Senator FAULKNER —They were wise words from Mr Marshall, who I know has worked so hard on this bill. I am delighted to see the same advisers who have spent 15 months on the job with us again in the Senate committee this evening. But they were wise words and it is important to take account of them and the evidence provided by those who represent agencies like ASIO before parliamentary committees. I might come back later and make another contribution, because it is a very important debate and there will probably be more than one opportunity for me to speak on this important issue.

We have to consider the broad issue of what happens if a person raises an issue under questioning by ASIO that is a matter of public safety. I do not want to go through dramatic examples; I just raise the issue in the broad. What happens in that circumstance? We have to ask ourselves: is it appropriate for questions to be able to be asked under certain circumstances? That is a perfectly reasonable and proper question for us to be able to answer in a debate like this. We also have to ask whether it would be the intention in legislation like this that a person who has been questioned and detained under the provisions in this legislation can effectively inoculate themselves from any further questioning, be it for a matter of days or weeks or months or years. It is an important question and it has been raised already by Senator Brown in this debate in the committee stage.

The key issue here is to ensure that there is no capacity for rolling warrants, to ensure that with any additional warrant information must be just that: additional or materially different from anything known by ASIO when they got the first warrant, whenever it might have been. There basically needs to be fresh grounds if at any stage a new warrant is issued. Put simply, that means a person cannot be held in continuous detention by ASIO; there cannot be these so-called rolling warrants.

At present there are very significant safeguards surrounding the warrant and questioning process. They are, firstly, that ASIO must satisfy both the Attorney-General and a judge acting as the issuing authority that the warrant will substantially assist in the collection of intelligence in relation to a terrorism offence and that relying on other methods of collecting intelligence would be ineffective; secondly, that a person gets their lawyer of choice to represent them; thirdly, that a person retains every legal right to take action in the Federal Court in relation to their custody or any alleged abuses of a warrant; fourthly, that questioning is supervised by a prescribed authority who is also a senior judge or retired senior judge; fifthly, that the Inspector-General of Intelligence and Secretary may be present during questioning with the power to intervene in questioning; and of course other safeguards which I have spoken about before. But the final safeguard in this bill that I want to mention, which I believe is the grandaddy of them all, is the sunset clause that will kick in after three years.

Labor has insisted on these safeguards that were not present in this bill when it was first introduced into parliament. They were not there but they are there now, and I am glad we have also been able to put to rest the issue of rolling warrants. It was important, it was not clear and it had to be made clear so this bill could be acceptable to pass.