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Thursday, 12 December 2002
Page: 7851


Senator FAULKNER (Leader of the Opposition in the Senate) (11:09 AM) —I move opposition amendment (39) on sheet 2764:

(39) Schedule 1, item 24, page 29 (line 27) to page 32 (line 4), omit section 34U, substitute:

34U Legal advice during questioning

(1) Subject to subsections (2) and (3), a person appearing before a prescribed authority for questioning under warrant may be accompanied by a legal adviser.

(2) If the prescribed authority is satisfied on application by the Organisation that the legal adviser chosen by the person being questioned may prejudice the collection of intelligence that is important in relation to a terrorism offence, the prescribed authority can deny the person their legal adviser of first choice.

(3) In the circumstances mentioned in subsection (2), the prescribed authority must assist the person to locate a suitable legal adviser.

(4) If the prescribed authority is satisfied, on application by the Organisation, that there is a threat of an imminent terrorist act, questioning may commence before the arrival of the person's legal adviser.

Breaks in questioning to give legal advice

(5) The prescribed authority before whom a person is being questioned must provide a reasonable opportunity for the legal adviser to provide advice .

Removal of legal adviser for disrupting questioning

(6) If the prescribed authority considers the legal adviser's conduct is unduly disrupting the questioning, the prescribed authority may direct a person exercising authority under the warrant to remove the legal adviser from the place where the questioning is occurring.

(7) If the prescribed authority directs the removal of the person's legal adviser, the prescribed authority must assist the person to locate a suitable legal adviser.

Communications by legal adviser

(8) The prescribed authority must not refuse to authorise the legal adviser to communicate to a court, for the purposes of seeking a remedy relating to the warrant or the treatment of the subject in connection with the warrant, information relating to the questioning or custody of the subject in connection with the warrant.

This amendment provides a right to legal advice during questioning. I can summarise our amendments by saying that they provide that a person being questioned should have the right to legal representation of their own choice and a right to private consultation during questioning. Accepting that certain lawyers may prejudice an investigation, we say that provided the prescribed authority were satisfied, on application by ASIO, a person could be denied a lawyer of first choice, but in such circumstances the prescribed authority should assist the person to locate another lawyer. We also say that if the prescribed authority were satisfied—again, on application by ASIO—of a real and immediate threat to public safety, then, as we have canvassed previously in the committee, we believe it is appropriate that questioning could commence before the arrival of the person's lawyer.

It is worth remembering that one of the key concerns of the PJC right from the outset in relation to this bill was the lack of provision of legal representation. The government introduced amendments which met the PJC's concerns in part, with the government insisting that people not be able to have a lawyer for the first 48 hours of their detention if the Attorney-General is satisfied a terrorist offence may be committed. The government's proposed 48-hour time period without a lawyer is completely arbitrary. It cannot be justified. In fact, all the committees that have reviewed this bill have unanimously opposed it. The grounds for allowing 48 hours of detention and questioning without a lawyer essentially relate to an emergency situation and the possibility of a terrorist offence being committed. No argument has ever been provided to uphold the notion that an emergency means no lawyers. An emergency can only mean no waiting for lawyers. If the government are talking about security leaks, I think they have to ask themselves if they have got other weaknesses, other holes elsewhere in the dike. Why would you say of the profession which most successfully practises confidentiality that they are the ones to be kept out? There is no mention of the translators and the prescribed authorities themselves.

I am not suggesting, of course, that that is necessarily a problem. But it comes back to the fundamental principle that the government puts forward: if you are in an emergency situation, you should not have a lawyer. We say that, if it is an emergency situation, we should not wait around—we should not have ASIO and the prescribed authority wait around for a lawyer. It is a very significant difference. In ordinary cases under the proposed regime, a person might be given two hours to contact a lawyer before questioning could start, but in urgent cases, where a terrorist attack might be imminent and intelligence is crucial, ASIO could put grounds to the prescribed authority to allow questioning to commence immediately. That is how the opposition believes the balance should be struck on this issue.

The government's proposed system of security clearing lawyers is quite problematic. Under proposed section 34AA, a person would become an approved lawyer based on a security assessment and any other matter that the minister considers is relevant. The Law Council of Australia stated that it was totally opposed to a regime where a person is granted access only to government approved and vetted lawyers. I would like to quote Mr Bret Walker SC from the Law Council, because I think he put this very well before the Senate Legal and Constitutional References Committee. He said:

The notion of a government approval necessary in order to be a lawyer to represent the interests of and to be present ... for people who have been subjected to very serious questioning otherwise in secret by the executive government is, in my view, extremely dangerous. You must not have, in my view, the capacity for executive government ... to vet the lawyers who can be there in order to be a physical, mental, institutional inhibition on an abuse of power by the executive government. It seems to me that there is something very important about `lawyer of one's own choice', once one puts aside the fact, of course, that quite often one does not have a practical choice if one does not have any money.

Of course, Mr Walker preferred the New South Wales Crime Commission model, stating that there might be circumstances where ASIO could show grounds to the prescribed authority why a particular lawyer should not appear. He said:

I see absolutely no reason why that would not work, with grounds shown to the prescribed authority. There is the sanity check; this is not just paranoia. The profession fears that, under the pretext of approving lawyers, there will be a determined effort to remove all lawyers generically. That is, it will not be an objection to a lawyer because of what he or she has or has not done in the past; it will be an objection to lawyers, and it will be very easily dressed up as an objection to particular people.

Again, this is a difficult issue on which to get the balance right. But we go back to a fundamental principle—that is, that a person should have the right to legal representation of their own choice. That is the fundamental principle which this parliament has always defended and which committees of this parliament looking into this bill have recently strongly defended. It is certainly a right which the opposition, and I hope the Senate, does not want to move away from. But we have accepted that there are emergency situations and, if there is a real threat to public safety, then we say that ASIO—obviously in the presence of the prescribed authority, which is a very important safeguard—can commence questioning. We have also accepted that ASIO might want to make a case about certain lawyers it believes can prejudice an investigation. If they make such a case and the prescribed authority is satisfied about such a case, then the opposition's approach ensures that, in that sort of situation, the prescribed authority should assist a person to locate another lawyer. I think that this is a regime that deals effectively and in a principled way with the important issues of legal advice, the right to legal advice and legal representation during questioning.

The Senate references committee has done an excellent job in ensuring that we have a balanced outcome in relation to this important principle. It is not limited to the Senate references committee; this has been a strong view of the JPC, a strong view that has been defended and protected before this Senate and in this parliament up until this legislation, and it has been defended in equivalent parliaments around the world, as senators would be aware.

We say that this fundamental principle of the right to legal advice should not be breached in relation to this legislation. We say that the Senate ought to show the government the way through. The Senate committee system has shown the appropriate wit and capacity to deal with an urgent and immediate threat to public safety. It is a real concern and we need to deal with it. If the prescribed authority is satisfied of concerns that ASIO might have in relation to a particular lawyer who might prejudice an investigation, that needs to be dealt with. After a lot of hard work, we see a proposal before this committee where an appropriate balance is achieved, and I commend this amendment to the Senate.