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Tuesday, 10 December 2002
Page: 7625


Senator FAULKNER (Leader of the Opposition in the Senate) (9:35 PM) —by leave—I move opposition amendments (3), (4), (6), (19), (20) and (24) on sheet 2764:

(3) Schedule 1, item 24, page 6 (line 25) to page 7 (line 2), omit the definitions of approved lawyer, Federal Magistrate and issuing authority.

(4) Schedule 1, item 24, page 7 (after line 7), after the definition of record, add:

superior court means the High Court, Federal Court, Family Court, the Supreme Court of a State or Territory or a District Court of a State.

(6) Schedule 1, item 24, page 8 (lines 4 to 15), omit section 34B, substitute:

34B Prescribed authorities

(1) The Minister may, by writing, appoint as a prescribed authority a person who:

(a) has served for 10 years as a judge in one or more superior courts; and

(b) no longer holds a commission as a judge of a superior court; and

(c) is under 72 years of age.

(2) The Minister must not appoint a person unless the person:

(a) has by writing consented to being appointed; and

(b) the consent is in force.

(3) A person can only be appointed as a prescribed authority for a single three-year term.

(4) The Minister must cause to be kept a list of names of former judges who have consented to being appointed as prescribed authorities.

(5) If a former judge whose name is included in the list requests the Minister to have the former judge's name removed from the list the Minister must cause the list to be amended to give effect to the request.

(6) The Minister may, on his or her own initiative, cause the name of a former judge to be removed from the list.

(19) Schedule 1, item 24, page 12 (line 29), omit “issuing”, substitute “prescribed”.

(20) Schedule 1, item 24, page 13 (line 9), omit “issuing”, substitute “prescribed”.

(24) Schedule 1, item 24, page 14 (line 12), omit “24”, substitute “4”.

As the committee is aware, we have spent a considerable period of time debating two alternatives: the government's proposal in relation to prescribed authority and that of the opposition. I have canvassed at some length the reasons that I believe the opposition's proposal is a superior one. I think that we determined in the committee debate that both alternative models would effectively be on the table and canvassed. The committee has seen fit to oppose the government amendments in relation to adding former judges. We are now dealing with the substantive opposition amendment in relation to the form of the prescribed authority.

I do not want to speak at length to this, because we canvassed it at considerable length a little earlier this evening. It is important for the committee to remember that the prescribed authority plays an absolutely crucial role in the questioning regime. It is, of course, the prescribed authority which is present when questioning takes place. The prescribed authority has responsibility for supervising the questioning and for managing the whole process and has a capacity to give directions in managing the process.

We have indicated our concerns on a range of issues in relation to the alternative proposition that is contained in the bill, and not only in terms of the need for appropriate status and seniority of the prescribed authority—in other words, judges as opposed to magistrates. There is also the question of constitutionality, which is an important one. Hence the proposal that the opposition have put forward—which was developed in the Senate references committee inquiry and report—in relation to retired judges, given the concerns that have been indicated and presented to the committee about the constitutional issues surrounding serving Federal Court judges and federal magistrates.

I put to the committee in the strongest terms I can that this particular amendment has the advantage of removing those serious concerns over the constitutionality of using chapter III judges as the issuers of warrants. It also has the very considerable advantage of ensuring maximum community support for and confidence in the regime, by ensuring the accountability and integrity of the process. That is the great advantage of using retired judges as the prescribed authority. I make the point again that this is something that not only is supported by the opposition and the Senate references committee but also was received very favourably by senior members of the legal community who appeared before the Senate references committee, by agencies and also by community groups.

The amendment has a lot to commend it, and the only real argument that the government has been able to propose against it is that there may be an inadequate number of retired superior court judges to be able to adequately fulfil the functions of, or provide a panel for fulfilling the functions of, a prescribed authority. But we continue to face the problem that the government is unable to quantify that, thus reinforcing what Senator Greig was saying in his most recent contribution to the committee.

Mr Temporary Chairman, as you know, this particular matter has been canvassed at length this evening. I believe the proposal that the opposition is moving is the very best model available in relation to the composition of the prescribed authority, and I commend the amendments to the Senate.