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Tuesday, 10 December 2002
Page: 7621


Senator ELLISON (Minister for Justice and Customs) (9:12 PM) —I rise to address a couple of issues. Firstly, Senator Faulkner has raised the query of using members of the Administrative Appeals Tribunal as prescribed authorities. I think the question related to whether or not they are appropriate. Recommendation 1 of the report of the Parliamentary Joint Committee on ASIO, ASIS and DSD—of which Senator Ray is a member and was a participant in this inquiry—into the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 states:

Federal magistrates to issue all warrants;

Federal Judges to issue all warrants where detention will exceed 96 hours; and

members of the AAT, as set out in proposed subsection 34B(1), to undertake all other duties of the prescribed authority excluding the power to issue warrants.

That is where you get the division between the people who issue the warrant and the people who are the prescribed authorities who oversee the questioning. That deals with any constitutional query, and it is also a recommendation of the parliamentary joint committee, which we adopted. That is why it is in the bill.

We have had the query about the constitutionality of this framework. If you are going to ask where the authority is, let us look at a Senate committee, because we rely on this as our authority. The Senate Legal and Constitutional Legislation Committee, as I previously advised the committee, looked into the constitutional aspect of this bill. Paragraph 1.21 of the committee's report comes under the heading, `Is the issuing of questioning warrants by magistrates an exercise of executive power that is incompatible with their role as judicial officers?' This is the nub of any concern as to constitutionality and really touches on the High Court decision of Grollo v. Palmer. Paragraph 1.21 of the committee's report states:

In summary, the Committee notes the concerns of Professor Williams and Dr Carne about some fundamental constitutional questions and the further response of the Attorney General's Department to those matters. The Committee considers that if the PJC's recommendation that warrants for detention be issued only by federal magistrates and Federal Court judges is adopted by the Government, such amendments will go a considerable way towards addressing the concerns about the validity of the current Bill.

That is precisely what we did. We have taken on board recommendation 1 of the parliamentary joint committee, and we have federal magistrates, Federal Court judges and members of the AAT as prescribed authorities. So I think we have addressed those issues, and I cannot see what more the government can do. We have taken what the committee said and we have got our own advice. The matter really speaks for itself. Look at the committee report, look at both committee reports, and you will see what the PJC said in its first recommendation. We have followed that course of action.