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Thursday, 12 December 2002
Page: 7855


Senator FAULKNER (Leader of the Opposition in the Senate) (11:32 AM) —No doubt the minister may care to comment on these matters and of course Senator Harris can progress the issues that he wishes to with the minister. I think we have to be absolutely clear about this. The clock starts when the first question is asked. I cannot make that any simpler. I think that is a very clear and precise answer to the question that Senator Harris has asked and, although he has not directed it to me— he has directed it to the minister—I have taken the opportunity to answer. I do not know whether Senator Harris heard the response I gave to Senator Nettle, but the prescribed authority is obligated to explain certain things to anyone being questioned, and of course that would occur straightaway.

The key point here—and I think it is important that this committee understands it— is that we are saying a person is always entitled to have a lawyer present from the start, but the exception is in relation to questioning. Questioning can start straightaway in an emergency situation. We have proposed a further safeguard: questioning in an emergency cannot be extended beyond four hours without a lawyer being present. I think the key point—and the only way that I can sum this up in relation to the principle here, because it is an important principle—is that there is no suggestion that an emergency situation means no lawyers or no right or entitlement to a lawyer. There is no suggestion of this at all. None is contemplated by the opposition; none is proposed by the opposition.

We do say that it is up to ASIO to satisfy the prescribed authority in relation to the immediate threat to public safety. In that situation there is no waiting for lawyers. So there is no waiting for lawyers in an emergency. This is not a suggestion that affects rights or entitlements. That is clear, and I do not think that we should resile from that. The issue is: do you wait in an emergency for a lawyer to be present? The opposition says, `No, with the safeguards that are built into the bill, we shouldn't.' As I have said before, this is the sort of issue that has been addressed at some length, and it is an important distinction. I think it needs to be made absolutely clear, as we debate this very important amendment, which goes to the right to legal advice and representation, that there is no suggestion at all that that could or should be abrogated in any way.

I draw that distinction to make absolutely clear that there is no suggestion that an emergency situation means no lawyers or no right to legal representation. It does mean on those occasions where there is a real and immediate threat to public safety that, if the prescribed authority is satisfied that is the case on application by ASIO, you do not wait for lawyers and the questioning starts. In my view, that reinforces how essential it is for the prescribed authority to have such seniority and standing in the community that the Australian community can have confidence in such a regime.