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Thursday, 12 December 2002
Page: 7863


Senator ELLISON (Minister for Justice and Customs) (12:15 PM) —The government opposes this amendment for a number of reasons. Most importantly, it believes that the amendment is unworkable and also unconstitutional, and perhaps I can address that second aspect first. The parliamentary joint committee included in its discussion the status and role of the prescribed authority. It stated:

The problem arises, however, that if a Federal Magistrate was to perform the role of a PA—

prescribed authority—

as set down in the Bill, then, based on evidence provided to the Committee, the High Court might find the Bill unconstitutional.

I will not go into much more detail than that other than to say that, if you look at the committee's report, it talks about how a judicial officer—a judge or a magistrate—can issue a warrant but not be a prescribed authority, for the reasons outlined in the case of Grollo and Palmer. We believe that the parliamentary joint committee made a good point, and our advice is certainly that the proposal that you have here, with a judicial officer acting as a prescribed authority, is indeed a problem. We have done it in relation to the AAT, because we believe that is appropriate and does not risk the problems that I have outlined in relation to this amendment.

We also say that our proposal—and I do not want to go through the whole debate again—is appropriate. On the one hand, we have our Federal Court judges and magistrates issuing the warrants, and on the other we have our AAT members being prescribed authorities. Then, to supplement those people, we have the retired judges who can act as either, but not both, in the same case of a particular person. We believe that is much more workable.

We have already said that you cannot rely just on retired judges, because there are insufficient numbers, and we have not heard from the opposition where it says the numbers are in relation to that. As best we can, we have provided information on that. We do believe that in this particular amendment the unconstitutional aspect of this is quite clear, and we fail to see how the opposition can persist with this amendment, particularly given what the joint parliamentary committee has said. We also think that it is unworkable, and I will not go over the previous arguments that we have raised in relation to that. For those reasons, the government opposes this amendment.