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Wednesday, 16 October 2002
Page: 5303


Senator McLUCAS (3:43 PM) —I present the 12th report of 2002 of the Standing Committee for the Scrutiny of Bills. I also lay on the table Scrutiny of Bills Alert Digest No. 11 of 2002, dated 16 October 2002.

Ordered that the report be printed.


Senator McLUCAS —I seek leave to move a motion in relation to the report.

Leave granted.


Senator McLUCAS —I move:

That the Senate take note of the report.

The 12th report of 2002 of the Scrutiny of Bills Committee deals, as usual, with a number of bills. On behalf of the committee, however, I wish to highlight two of those bills, both of which deal with aspects of personal rights and liberties and both of which illustrate different facets of the committee's operation. The protection of personal rights and liberties occupies easily the greatest volume of the work of the committee as well as the greatest variety of concerns. The two bills in question are instances of this volume and variety.

The first of the bills is the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, which, as noted in the committee's Alert Digest No. 4 of 2002, included a number of significant issues involving personal rights and liberties in relation to warrants for detention and questioning, the rights of persons in detention and the abrogation of the privilege against self-incrimination.

The committee's response to these issues was to ask the Attorney-General a number of specific questions about the effect of those provisions. I am pleased to report that the Attorney-General advised that the committee would receive a response to its queries before the Senate considered the bill. The committee has now received and considered the Attorney-General's response, and it is included in the report which I have just tabled. The committee thanks the Attorney-General for this.

The committee and the Attorney-General's reply both noted considerable government amendments to the bill in the House of Representatives. There is no doubt that these amendments, made largely to implement recommendations of Senate and joint committees, improved the quality of the bill when compared to the earlier provisions. However, the Scrutiny of Bills Committee concluded that even after amendment the provisions may continue to be seen to trespass unduly on personal rights and liberties. The question for the Senate when considering these provisions is therefore to weigh the breaches of personal rights against the policy objectives of the bill. The committee as usual makes no recommendations in relation to which way the Senate should act. In its report on the bill the committee notes that the provisions may breach its terms of reference but leaves it to the Senate to balance this against the intended purpose of the bill.

The second aspect of personal rights and liberties addressed by the report is a provision in the Transport Safety Investigation Bill 2002, which provides for the executive director of transport safety investigation to enter accident site premises or any vehicle without the occupier's consent and without obtaining a warrant. The bill expressly authorises the executive director to do this with reasonable and necessary force. The executive director may delegate this power to any person at all, subject only to the subjective opinion of the executive director that the delegate is a suitable person to exercise those powers. The provision raised concerns in the committee both because of the nature and breadth of the power and because of its subject matter. The committee questions administrative powers which are unconstrained by definitions or criteria, and the present provision may be an instance of such a power. The power also appeared broader than those it was intended to replace.

The subject matter of the delegation is also of continuing concern to the committee. The committee's fourth report of 2000, Entry and search provisions in Commonwealth legislation, advised that the power to enter and search premises should always be regarded as exceptional and not to be granted as a matter of course. That report also sets out a number of principles on which such powers should be based. Among those were principles governing the choice of people on whom the power is to be conferred. Those principles expressly recommend that the power to enter and search should not be given to a recipient categorised simply as a `person' or as a member of a particular organisation. The principles also recommend that the power should only be conferred on officials who have received appropriate training. In addition, it should not be conferred on a particular recipient simply because it is the most economically or administratively advantageous option. In the case of the present bill, it appears that these principles may not have been adopted.

The minister's reply to the committee's initial concerns was detailed and informative, and the committee is grateful for this. However, it still leaves the question of the absence of definitions and criteria to control and limit the exercise of the power. Accordingly, the committee intends to ask the minister to provide a briefing on these matters by departmental officials. This is a step which the committee takes when it feels that it would be more beneficial than written contact. After the briefing, the committee may report further on the bill. The committee is confident that its report will assist the Senate in its consideration of the bills.

Question agreed to.