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Thursday, 12 December 2002
Page: 7861

Senator FAULKNER (Leader of the Opposition in the Senate) (12:04 PM) —I seek to reconsider an amendment that the committee has dealt with: opposition amendment (6) on sheet 2764, which was agreed to on Tuesday. I have circulated two amendments that would supersede that amendment. With your indulgence, Chair, I would like to deal with that now, if I could.

The TEMPORARY CHAIRMAN (Senator Lightfoot)—You may, Senator Faulkner.

Senator FAULKNER —I seek leave to move amendments (1) and (2) on sheet 2976 together.

Leave granted.

Senator FAULKNER —I move:

(1) Definition of superior court as amended, add at the end “or a Territory or an equivalent”.

(2) Section 34B as amended, omit the section, substitute:

34B Prescribed authorities

(1) The Minister may, by writing, appoint as a prescribed authority a person who has served as a judge in one or more superior courts for a period of 5 years and no longer holds a commission as a judge of a superior court.

(2) If the Minister is of the view there is an insufficient number of people to act as a prescribed authority under subsection (1), the Minister may, by writing, appoint as a prescribed authority a person who is currently serving as a judge in a State or Territory Supreme Court or District Court (or their equivalent) and has done so for a period of at least 5 years.

(3) If the minister is of the view that there are insufficient persons available under (1) and (2), the minister may, by writing, appoint as a prescribed authority, a person who holds an appointment to the Administrative Appeals Tribunal as President or Deputy President and who is enrolled as a legal practitioner of a Federal Court or of the Supreme Court of a State or Territory and has been enrolled for at least 5 years.

(4) The Minister must not appoint a person under subsections (1), (2) or (3) unless the person:

(a) has by writing consented to being appointed; and

(b) the consent is in force.

(5) A person can only be appointed as a prescribed authority for a single three-year term.

(6) The Minister must cause to be kept a list of names of people who have consented to being appointed as prescribed authorities.

(7) If a person whose name is included in the list requests the Minister to have their name removed from the list the Minister must cause the list to be amended to give effect to the request.

(8) The Minister may, on his or her own initiative, cause the name of a person to be removed from the list.

(9) A person appointed as a prescribed authority in accordance with this section shall be paid such remuneration as is determined by the Remuneration Tribunal, but, until that remuneration is so determined, he or she shall be paid such remuneration as is prescribed.

The amendments that were moved on Tuesday by the opposition—and agreed to by the Senate—on the issue of retired judges serving as a prescribed authority were moved for the purpose of achieving a workable and constitutionally valid regime for questioning for the purpose of obtaining intelligence that may prevent a terrorist incident. It was in that context that we proposed, as recommended by the Senate Legal and Constitutional References Committee, that retired senior judges serve as prescribed authorities. We did so to ensure that prescribed authorities were persons of appropriate legal authority and independence while avoiding potentially complicated questions regarding the use of judicial power.

During this committee stage, the government has expressed practical concerns regarding the availability of a sufficient number of suitably senior retired judges who would be both able and willing to act as the prescribed authority. The Attorney-General has also shown the opposition confidential legal advice to the effect that the employment of serving judges in the regime proposed by the government would withstand constitutional challenge. Without disclosing that advice, we note that the constitutionality of employing serving judges as prescribed authorities in a questioning regime is arguable.

Quite clearly, Labor's preference remains for retired senior judges to serve as prescribed authorities but, in a spirit of practical compromise, we now propose, in the two amendments before the chair, that in the event that sufficient retired judges are not available to serve as prescribed authorities the Attorney-General may appoint serving state judges who consent to perform that function. Even further, we are proposing that in the event that there are insufficient persons in either of those two categories—retired judges and serving state judges—the minister may appoint an appropriately experienced and qualified member of the AAT.

This category will increase the pool of persons available to serve as a prescribed authority by a further 21. There are 21 experienced and qualified members of the AAT in that third category. There are 12 judges who are presidents or presidential members and nine who are deputy presidents. Our purpose in moving these amendments is to ensure that the questioning regime for ASIO, which is reflected in this bill as now amended—a regime that we argue and will continue to argue is appropriate and necessary—will not fail on the basis of what is essentially a technicality. While we believe that there are sufficient retired judges to undertake the task, we do not want to leave ASIO's hands tied in circumstances where there may not be.

We expect that after this legislation is passed the Attorney-General will contact state and territory governments to identify the current and serving judges who might be available to serve as the prescribed authority. If there is any delay in filling the first and second pools then it should be possible to use the third pool—in other words, the appropriately qualified AAT members. We say that this is a flexible and workable mechanism which should facilitate the introduction of this questioning regime as soon as possible. I commend these amendments to the Senate.