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Thursday, 12 December 2002
Page: 7855


Senator NETTLE (11:37 AM) —I recognise the comments by Senator Faulkner that these amendments are not designed to remove the right to have a lawyer at all. I do not make the suggestion that they do that, because they do allow questioning to start without waiting for a lawyer. I accept your statement that you are not suggesting that a lawyer would not subsequently arrive, that we now have in place a regime where they need to arrive after four hours and that that time frame cannot be extended to eight hours until a lawyer is there. I am not suggesting that you are taking away the right to a lawyer. I think you clarified that, and the assumption is that you have the right to a lawyer. But I think it is important to point out that you can start the questioning without a lawyer being present, so this model does allow for a regime which involves questioning without a lawyer being present.


Senator Faulkner —In certain circumstances: in an emergency when there is a real and immediate threat to public safety.


Senator NETTLE —Thank you, Senator Faulkner; that is correct. When we talked about it before, we pointed out that we are allowing a lawyer not to be there in those circumstances. With respect to when a person's rights are read to them, particularly concerning their right to an interpreter and their right to a lawyer, the way that that is currently written in the legislation is that it occurs as soon as the person first appears before a prescribed authority, which was what Senator Faulkner was talking about before. If that occurred without a lawyer being present, I would want to ensure that there was the capacity, once a lawyer did become present, for that lawyer to be able to ask that those rights be reread so that the lawyer was aware of those rights, not just the individual who heard them when they first came before the prescribed authority. It is likely that in this instance that they might not remember what those rights were, so this would allow the capacity for the rights to be reread when the lawyer was there. I imagine that the lawyer would be able to ask the prescribed authority about that to ensure that did occur.

One government amendment that we passed in this committee process related to the obligation to inform a person being questioned about the reason for a particular person's presence. This was describing the role and function of those individuals who were there for the questioning. That particular amendment does stipulate that this need only be complied with once. It does not rule out that subsequently that information could be provided once a lawyer was present. The reason I raise these concerns is to ensure that, if a lawyer became present subsequently and wanted to hear the rights read out, they would be able to have that done. I imagine a lawyer would also be able to look at them in the legislation, although they may not be available in the questioning facility at the time. I just wanted to explain my concern about ensuring that they are made aware of their rights in the presence of a lawyer, given that the first instance in which they were read their rights may not have been in the presence of a lawyer.