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Wednesday, 11 December 2002
Page: 7796


Senator GREIG (7:14 PM) —by leave—I move Democrat amendments (1) to (3) on sheet 2788:

(1) Amendment (25), after subsection 34F(7), insert:

(7A) The prescribed authority may authorise a person subject to a questioning warrant to contact other persons during questioning and may identify those other persons by reference to a particular familial relationship with the person being questioned. This does not limit the ways in which the prescribed authority may identify persons whom the person is permitted to contact.

(2) Amendment (25) after subsection 34F(12), insert:

(12A) This section does not in any way limit the right of a person subject to a questioning warrant to seek a remedy from a court in relation to the warrant, the treatment of the person in connection with the warrant, or the questioning or custody of the person in connection with the warrant.

(3) Amendment (25), omit subsection 34F(14), substitute:

(14) Anyone holding the person in custody under this Division must, if the person requests, give the person facilities for contacting:

(a) any person whom the person is permitted to contact pursuant to subsection 34D(4) or 34F(7A); or

(b) the Inspector General of Intelligence and Security or the Ombudsman to make a complaint orally under a section mentioned in subsection (13).

We Democrats are supportive of the amendments being proposed by Labor but feel that opposition amendment (25) could be better enhanced with some Democrat proposals. Opposition amendment (25) principally seeks to replace section 34F in the bill, as Senator Faulkner stated. Section 34F deals with procedures during the detention of a person and, in particular, the various directions which the prescribed authority may make. Section 34F contains a provision enabling the prescribed authority to make a direction authorising the person being questioned to contact other identified persons.

We Democrats believe that Labor's substitute section 34F is preferable to that which currently exists in the bill for a number of reasons, including, in particular, that it limits the period of detention to a period of four hours, with possible extensions up to a maximum of 20 hours. Labor's section 34F incorporates a provision enabling the prescribed authority to authorise a person being questioned to disclose to other persons information about the questioning. However, unlike the existing section 34F, it does not contain any provision enabling the prescribed authority to permit the person being questioned to contact other specified persons. It is perhaps arguable that this power exists by implication in Labor's section 34F, but we Democrats believe that, to avoid any doubt, such power must be expressly provided for.

The ability of a person being questioned to contact other identified persons should not be limited to those specified in the warrant. The Democrats believe that a degree of flexibility should attach to this right. It may become apparent to the prescribed authority over the course of questioning that there is good reason for the person to be permitted to contact another specified person. For example, the questioning may proceed for longer than originally expected, and the prescribed authority may consider it appropriate to permit the person to contact his or her employer to inform them that he or she will not be attending work. Ultimately, a person's right to contact other identified people during the period of questioning will still be determined and regulated by the prescribed authority at all times.

The Democrats believe firmly that this piece of legislation must enshrine the right of a person to apply to a court to determine the legality of their detention and to seek a remedy from the court relating to their detention. This is a fundamental right stemming from the ancient doctrine of habeas corpus, and there must be no doubt that it applies in the context of this legislative regime. Democrat amendments (2), (4) and (5) on sheet 2788 seek to make it abundantly clear that none of the provisions in sections 34F, 34G or 34U in any way limit that right. Democrat amendment (5) on sheet 2788 replaces a very similar provision in Labor amendment (39), but it expressly extends the right of the person being questioned to communicate with a court, whereas the Labor amendment limits this right to a person's legal adviser. The Democrat amendment seeks to recognise that, in some circumstances, a person being questioned under the act may choose not to seek legal advice but may, nevertheless, wish to pursue their right to seek a remedy from a court relating to their detention. The Democrat amendment also provides that the person being questioned or a person's legal adviser may contact another legal adviser for the purpose of seeking a remedy from the court. This recognises that the person's legal adviser is likely to be a solicitor who may wish to brief a barrister for the purposes of any court proceedings.

Democrat amendment (3) on sheet 2788 seeks to amend opposition amendment (25) to make it clear that anyone holding a person in custody under the act must provide the person with facilities for contacting not only the Inspector-General of Intelligence and Security or the Ombudsman but also any other person whom the person being questioned is permitted to contact. Again, this is arguably implied in the provisions of the bill in its current form, but the Democrats believe that it is important to expressly provide for this obligation under the act. There is little point in permitting a person in detention to contact another specified person if the person is not provided with the facilities required to make such contact.

Progress reported.