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Thursday, 12 December 2002
Page: 7839

Senator FAULKNER (Leader of the Opposition in the Senate) (10:08 AM) —One of the reasons that the opposition believes that it is important to have a person of appropriate seniority and standing as the prescribed authority is not only that the prescribed authority will obviously oversee some of the matters that Senator Nettle refers to but that there will be occasions when the prescribed authority will have to make decisions about these matters, which I am sure the senator appreciates.

I indicated previously that these amendments are broadly in concert with the unanimous Senate committee recommendations on these particular issues. Amendment (25) provides that when a person appears before a prescribed authority they may be questioned for a period not exceeding four hours. As I understand it, some of these continuous periods of questioning go on for one or two hours, although I must say to Senator Nettle that I have had no personal experience of this. That is why we have looked at trying to fall back on the well-established procedures that are in place currently under the Criminal Code. We have said broadly, as the senator has reflected, that when a person first appears they can be questioned for a period not exceeding four hours. We have said that that period can only be extended by up to eight hours if, on application by ASIO, the prescribed authority is satisfied that there are reasonable grounds to believe that further questioning is likely to yield relevant information. We have also ensured that such an extension past four hours can only be agreed to if a person has legal representation.

These are important matters, as I am sure the committee would agree. We think that these sorts of time frames are appropriate. I have indicated what the exception to this might be. I think this committee has to take account of a situation where there is an imminent threat of a terrorist attack. There again, if the prescribed authority is satisfied that the situation is urgent and it believes that there are reasonable grounds to believe that further questioning is likely to yield information relevant to that imminent threat, then of course the prescribed authority can allow the person to be questioned for a further eight hours.

I do think the Senate committee and the Senate need to take account of these urgent situations. This is the sort of balance that we have to apply our minds to. This is the sort of situation that we hope will never be faced under the provisions of this legislation, but realistically we do have to contemplate that situation as we look at determining what the appropriate provisions might be. I stress to the committee that this is one of the reasons why it is so important that you have a person of standing, an experienced judicial officer, making these sorts of judgments and being satisfied on application by ASIO that there are reasonable grounds to believe that further questioning may yield information relevant to a terrorist attack. In those circumstances, we say that it is appropriate that a person be held for further questioning. I think it is difficult to mount a case against that principle. But, in the broad, we fall back on the time limits that have been established in the Crimes Act, which apply to people who may be suspected of committing a very serious offence. We need to keep in our minds also the fact that any questioning regime is very likely to apply to non-suspects. They are the sorts of balances that have been in the opposition's mind as we have tried to work through an approach that is workable and that offers maximum protections but that gives ASIO the capacity to undertake the fundamental intelligence gathering role that is proposed under this legislation.