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Tuesday, 10 December 2002
Page: 7619


Senator FAULKNER (Leader of the Opposition in the Senate) (8:57 PM) —The only information that is available to members of the committee is the Director-General of ASIO's public evidence in relation to this matter. I accept the minister's presentation of that evidence to the committee in this debate. That is a fair reflection of what was said. In excess of a year after September 11, 2001 such provisions, if they were in place, would have been used on two or three occasions. I think the link being drawn here—the link between the number of occasions such provisions may be used and the number of retired judges from the High Court, Federal Court, Family Court, state supreme courts and state, district or county courts who are available to fulfil that particular function—is an appropriate one. When we have dealt with these government amendments, we will be dealing with the opposition's amendments which propose that the prescribed authority comprise retired judges from those superior courts. We deliberately talk about retired judges.

It is very important that this committee reflect on the crucial role of the prescribed authority under this legislation—the crucial role of the prescribed authority in a questioning regime. The prescribed authority is the person before whom questioning must take place and the one who supervises the questioning. The prescribed authority is the one who can give a wide range of directions in order to manage the process. The committee should reflect on some of the evidence that was adduced before the Senate Legal and Constitutional References Committee. I remind the committee of the evidence of Mr Bret Walker SC, who appeared on behalf of the Law Council of Australia and argued that the prescribed authority `must not become engaged on anything which sees them lining up with the institution which is doing the questioning'. In his evidence he likened the role of the prescribed authority to that of a chaperone. He said:

... as I understand the role of a chaperone, it is not to run interference on things but, by their simple presence and by the nature of the person, to perhaps instil a sense of propriety that might not otherwise happen ... The idea is that if you have got a respectable retired judge ... then the chances of the security services misbehaving are hugely reduced, I would have thought. People do tend to behave better when they are in the presence of people whom they cannot control.

Like the Law Council, Dr Stephen Donaghue argued that a judge would be most suitable in this role. He said:

The questioning is not being conducted by the prescribed authority ... it is being supervised by them. It seems to be desirable to have someone acting in that position who would ... make sure that the process takes place appropriately. It seems to me that that is why they are there, at the end of the day—to ensure that the process is conducted appropriately. I would submit that a sitting Supreme Court judge, or a retired judge of any court, is less likely to be in a position to be pressured by the executive in the way that they exercise that function than an AAT member, who is likely to have had a less distinguished legal career and is likely to be dependent on the government for their continued appointment to the AAT. If it is a safeguard, it is a better safeguard in my view. There are certainly a great many Supreme Court judges or retired judges who would exercise that function very vigorously.

I think Dr Donaghue draws an important distinction about the seniority and status of judges and retired judges. It became clear through the recent Senate Legal and Constitutional References Committee inquiry into the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 that it is essential that the prescribed authority be truly independent if the prescribed authority is to fulfil the role and obligation of protecting the rights of people who are being questioned and detained. However highly esteemed magistrates may be, they do not have the status and seniority of judges.

We have had senior counsel making it absolutely clear that the role given to serving Federal Court judges and serving federal magistrates—who, as issuing authorities, are subject to the same chapter III limitations as Federal Court judges—makes the bill constitutionally suspect. Chapter III of the Constitution prevents the conferral of any function upon a federal judge, even acting in a personal capacity, if that function is incompatible with the exercise of the judicial function under chapter III. That concern has simply not been answered by the government.

The people putting this case are people of substance: Dr Gavan Griffith QC, Professor George Williams and Dr Stephen Donaghue. They represent some pretty heavyweight legal opinion on these sorts of issues. In stark contrast to the open, frank and thoughtful advice provided to the Senate Legal and Constitutional References Committee by these eminent people, the government refuse to table or provide a copy of its legal advice. The minister says that the legal advice exists but will not front up with it. Given what is at stake here, it is of concern that the government have never been willing to provide that advice to parliamentary committees or to either house of the Australian parliament. They say to us, `Everything's okay,' even though we have these eminent constitutional lawyers making the strong points they have made.

I am not sure it is okay. I am one of those people in the chamber who are not lawyers, but if strong, coherent and persuasive arguments are put forward by lawyers, I like to listen to them. But what the opposition has put forward, which we will deal with in the next set of amendments, is a far more workable model for the prescribed authority, and one that has also been recommended by a Senate committee. I want to hear from the government whether there are the logistical weaknesses that the minister blithely says exist. The minister claims that the pool of retired judges is not big enough. I hoped that, by the time we were having this committee debate, the minister would be able to substantiate that claim. He cannot. He has not been able to do that today. I think that, if the minister could substantiate that claim, there would be an obligation on this committee to look carefully at any arguments like that that are presented. But all we hear is that Senator Ellison is well connected in the Western Australian bar and he does not think there are enough retired judges to go around. No-one actually has any statistics or any names to throw on the table—or, as we would say in politics, no-one has any numbers to throw on the table.

I think that on these points the government is obligated to front up to the Senate committee. The government is obligated, if it says there are not enough retired judges, to tell us how broad the pool is. I have tried to seek advice from the legal community, who have tried to satisfy me that there are enough; but I am willing to listen to sensible, well-founded arguments, if there are any. I am more than happy to be satisfied on the point of constitutionality. But what we get from the minister and from the government is some half-baked claim that the Attorney-General's Department has had a look at it and everything is okay. Who is going to accept that throwaway line from the government on an important issue like this? The government to date has not provided any comfort on these important issues. It has provided no comfort at all on the serious constitutional issues that have been raised.

This is important, because the government—properly, in my view—argues about the national security implications of this and other counter-terrorism legislation. In my view, that is a fundamentally important imperative for this chamber and for this parliament. I hope every senator in this chamber takes account of it. If this legislation is considered as important as it is by the government, what would the government think of the blow to national security if this particular law, if it is passed in the form that the government wants, were to fall over because of constitutional problems with the warrant issuing process? That is why I think we are entitled, at this committee stage, to ask for clear and definitive answers from the government on issues of genuine and real substance.