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Tuesday, 13 June 2006
Page: 149


Senator LUDWIG (9:26 PM) —Thank you, Senator Brown; that has given me an opportunity to raise a couple more matters with this bill. I sought an answer earlier to explain in more detail why the government say that the prescribed authority should not have those documents that this amendment will provide to them. One of the arguments that I guess I have been putting on behalf of the government, for the government are unwilling to engage, is secrecy. The government did not answer that one, although I could perhaps answer it myself. I think there are sufficient protections in the bill such that the prescribed authority cannot range too far in discussing what might go on in the questioning under the warrant without falling foul of the legislation. Another reason is that they might perform a task which is unrelated to the warrant, or to the factual matrix of circumstances that makes up the warrant, to be more precise. They might, in fact, provide more easily discernible tasks. Perhaps, by explanation, you can see how that could be arrived at by looking at section 34HB of the existing legislation, which says:

Anyone exercising authority under the warrant may request the prescribed authority to permit the questioning to continue for the purposes of subsection (1) or (2). The request may be made in the absence of:

(a)  the person being questioned; and

(b)  a legal adviser to that person ...

So they perform this task under the request of the person or persons doing the questioning. 34HB(1) says:

Anyone exercising authority under a warrant issued under section 34D must not question a person under the warrant if the person has been questioned under the warrant for a total of 8 hours ...

It might be seen that they only need the warrant and can then say, ‘Eight hours are up,’ if they have a stopwatch, and then they are required to look at that issue. 34HB(2) says:

Anyone exercising authority under a warrant issued under section 34D must not question a person under the warrant if the person has been questioned under the warrant for a total of 16 hours ...

Once more, you get a period where it might be argued—although the government has not argued it—that they do not require the circumstances that these amendments sets out to be able to determine those things. They have a watch, so they can see when eight hours are up or when 16 hours are up. They can then consider the legislation in that light perhaps without considering the factual matrix.

But when you look at (4), I am not convinced—perhaps the government can shed light on it—whether or not they are, in the language that lawyers like to use, cutting off their nose to spite their face. It says:

The prescribed authority may permit the questioning to continue for the purposes of subsection (1) or (2)—

so it might be relatively easy to ascertain (1) or (2), as I have indicated—

but only if he or she is satisfied that:

Now here is the nub:

(a)           there are reasonable grounds for believing that permitting the continuation will substantially assist the collection of intelligence that is important in relation to a terrorism offence;

Now hold that; they will have to then look at the circumstances, look at the questioning that is under way, look at the face of the warrant—not the facts and circumstances that underpin it but only the face of the warrant—and, under that scenario, they would have to conclude whether there are reasonable grounds for believing that permitting the continuation would substantially assist the collection of intelligence. In fact, what you might find is that you have left yourself short, because on the face of the warrant itself it may not be sufficient to assist the prescribed authority to come to the conclusion that there are reasonable grounds for believing, and therefore they do not allow the questioning to continue.

If the broader information, as this amendment seeks to put, is put before them and they understand the contextual setting—the questions that are being asked in that contextual setting of the facts and issues that support the warrant—then they might come to reasonable grounds. Be that as it may, it seems that you are asking the prescribed authority not just to make a decision about times and about functions in terms of what their job is but also to look a little further and to permit important issues in relation to a terrorist offence, and to make that decision. So you are now asking the prescribed authority to do more than just a perfunctory role—notwithstanding how important that is—you are now asking them to look a little deeper at what is going on in the setting. If you look at (b), it says:

(b)           persons exercising authority under the warrant conducted the questioning of the person properly and without delay in the period mentioned in that subsection.

And (5) states:

(5)           The prescribed authority may revoke the permission. Revocation of the permission does not affect the legality ...

So what we really have, tied up with their role, is the discretion, and they have to exercise that discretion on reasonable grounds, for believing that permitting the continuation would substantially assist the collection of intelligence. That may not be apparent from the line of questioning from the questioners. But it might be apparent if the facts and statements that underpin the warrant were available to the prescribed authority. Without that, you might be leaving yourself short—where a prescribed authority might come to the conclusion that the line of questioning is not getting anywhere. It might seem irrelevant to the warrant; it might seem irrelevant more broadly. Without that information that is currently before the issuing authority, the questioning might end, because the prescribed authority may not come on reasonable grounds for believing that it should continue. I would ask you to look at that and provide me with a view.