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Wednesday, 25 June 2003
Page: 12598


Senator BROWN (7:45 PM) —Senator Nettle, I am sure the minister is going to give a response to that. But, while he is considering that, I have a couple of points here. I move an amendment to government amendment (4):

After paragraph 34D(1A)(b), add:

; and (c) the issuing authority must advise the person that they have the right to seek a judicial review at every time a subsequent warrant is sought.

That would mean that if a person has been released, having been questioned, when they are rearrested they must be advised that they have a right to a judicial review. That is one of the recommendations that came from that unanimous decision by the Parliamentary Joint Committee on ASIO, ASIS and DSD last year.

Senator Ray says that most of the committee's recommendations are now built into the legislation. That is not my reading of some very important components of that joint committee report. On this very matter, the Greens have put an amendment which is based on recommendation 3, which is that after seven days a person must be either charged or released. That is certainly not embodied in what we have before us at the moment. Recommendation 6 of that committee said:

... the Bill should be amended to allow these lawyers to sit in on the entire proceeding of the prescribed authority, and represent a person at any further hearings which seek to extend detention ...

There is no provision; it is not covered. A lawyer does not have to be present throughout the entire proceedings. That should be the case, but it simply is not the case. That is of great concern. Recommendation 10 said that this bill should not apply to persons under the age of 18, but we know that it does apply to 16- and 17-year-olds. Then there is the provision for a sunset clause, and we have not achieved that. A partial sunset clause is being looked at.

The amendment that I have just moved covers another recommendation which is not in this legislation but which I believe should be there. I put that earnestly to both the government and the opposition. I think it is an important amendment. We do not support serial warrants, but if there is to be a second, third or fourth warrant the person who is being rearrested should have access to a judicial review of that decision. If you look at the legislation, the person is informed at regular periods during the period in which they are in detention that they have the right to a judicial review. It is very important that if they are arrested a second time they are told that they have a right to a judicial review at that stage. I would expect that that is something the committee will adopt.

I am sure other senators have today's letter from the President of the Law Council of Australia, Mr Ron Heinrich. It is a very well-balanced letter; all who have read it will agree. I want to draw the committee's attention to the second page of Mr Heinrich's letter, where he says:

... it is with some considerable alarm that it seems that the prospect of subsequent warrants authorising detention beyond a seven day limit will be a practical option open to ASIO under the Bill. Such an outcome, even with the need to traverse again the approval and authority process in the Bill, could well see the questioning regime revert to a detention regime. This prospect can not be supported by the Law Council of Australia.

It is strongly recommended that the Bill not be passed in its current form. It must always be remembered that the Bill applies to the questioning and consequent detention of a person not suspected of any criminal behaviour. At a very minimum, the Law Council would submit that approvals and a warrant authorising the questioning of a person already subject to questioning under the regime established by the Bill should not be permitted on subsequent occasions unless in addition to the existing tests required to be satisfied—

and there are five points, of which the first is:

· new information, not previously in the possession of security or police agencies at the time of the initial approval for questioning, is brought before the approving and authorising authorities ...

That is not quite what these amendments say. The amendments do not mention new information not previously in the possession of security or police. They say `new information that was not previously in the possession of the authorising authority'. I think that is a major difference. It does mean that ASIO and the police can have held back information on which a second warrant is issued.


Senator Robert Ray —The police are not mentioned anywhere.


Senator BROWN —Senator Ray says that it has nothing to do with the police. Without the police, there cannot be an arrest made here.


Senator Robert Ray —But it is not the information known to the police; it has nothing to do with the police. It is the Director-General of ASIO.


Senator BROWN —I am reading from the letter. Let us confine it, then, to Senator Ray's contention that it is information that ASIO holds. My argument is not altered by that fact, nor is the Law Council's. It does mean that ASIO can put forward some of the information that they require to get a warrant in the first instance and hold some back, and seven days later get a new warrant based on information they had at the time of the original warrant. That does not meet the criterion that the Law Council of Australia recommends. Secondly, the Law Council's letter says:

· it is explained why the information was not reasonably available at the time when the initial period of questioning was approved and authorised—

that is not here. Thirdly:

· the information must raise an issue of a substantially different kind from that previously relied upon for the grant of approval and authority to question the person—

a tick on that one. Fourthly:

· the information must not have been derived from answers provided by the person as a result of the previous questioning undertaken under the regime established by the Bill—

that is not here. Fifthly:

· the subject matter was not substantively canvassed during the questioning which has previously taken place under the regime authorised by the Bill.

Again, that is not there. So four of the five criteria that the Law Council recommends here are not met by these amendments, which the opposition agrees with the government remedy the situation. They do not remedy the situation and that is why we oppose them.

Finally, in relation to me saying earlier that a person who is held for 24 hours could then have immunity for four days while they wait for release: Senator Faulkner, you are right about that—they would have to be released. So all ASIO has to do is hold them for 23 hours and then they can be held for a further four days.


Senator Robert Ray —They can be questioned for 23 hours.


Senator BROWN —Thank you, Senator Ray. They can be questioned for 23 hours over three days and then they can be held for a further four days. That is why we will be supporting the opposition's amendment to bring the seven days back to three days. Our problem is that the opposition has already told the government that it is not going to stand by that amendment when the blowtorch is applied.