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Tuesday, 10 December 2002
Page: 7622


Senator FAULKNER (Leader of the Opposition in the Senate) (9:16 PM) —When someone who has been the Commonwealth Solicitor-General, such as is the case with Gavan Griffiths QC, says that the legislation in its current form is constitutionally suspect, I think it is very foolish of the government not to look carefully at these sorts of issues. Of course what the Minister for Justice and Customs does— and this has been raised after the report of the Parliamentary Joint Committee on ASIO, ASIS and DSD—is come in here and read one recommendation from the PJC report. Half an hour ago he was rejecting another one. In other words, what the minister is doing is cherry picking these recommendations. If a recommendation or a view of a particular committee happens to suit the government, the government picks that out, regardless of the evidence that has been forthcoming on these issues—in the case of the PJC, after the advisory report had gone to the Attorney-General.

The approach that the opposition is putting forward is in fact consistent with a unanimous Senate committee recommendation—that is, that the opposition proposes that the prescribed authority be made up of experienced retired judges. I am trying to hear from the minister, but have not heard, some support for a logistical argument, which I think people would take account of if there are not enough of them. Apart from some sort of vague indication that this is the case in Western Australia, the committee is yet to be provided with any evidentiary support for that statement.

So we say, given all the concerns and given the role of the prescribed authority, that that prescribed authority be made up of experienced retired judges—individuals whose standing cannot be questioned. We have suggested a panel of retired judges who have had very significant years of service on a superior court. What is the advantage of doing that? What is the reason for doing that? It removes serious concerns over the constitutionality of using chapter 3 judges as the issuers of warrants, as the government is proposing, but also—and I think this is very important—it will have the effect of boosting community confidence in the accountability and the integrity of this regime. I think that is absolutely essential also.

The government needs to reflect on the fact that when this proposition was developed by the Senate committee—it came forward in evidence, and the committee was able to seek evidence on this matter and develop the proposal of using retired judges as members of the prescribed authority—it was very well received by agencies, by lawyers and by community groups who were appearing before the Senate inquiry. In fact, the Director-General of Security also said in evidence before the Senate inquiry that he thought using retired judges was well aligned to the current bill. But I think it is important that we heed what the director-general was saying. It is important to remember that, right through his evidence and through a range of public statements he has made, he has been supportive of ensuring that we use a model that instils the greatest level of community confidence in this regime. I think that is the other great advantage in what the opposition propose with retired judges. If there is a logistical problem with this in terms of the numbers, in terms of the pool, tell us. Do not make some vague claims. Put it on the table so that we can have a look at it.