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Thursday, 12 December 2002
Page: 8086

Message received from the House of Representatives acquainting the Senate that the House has agreed to amendments (3), (11), (14), (15), (29), (31), (38), (39), (48) to (50), (52), (53), (57) and (58) made by the Senate, disagreed to amendments (1), (2), (8) to (10), (12), (16) to (28), (30), (32) to (37), (42), (44) to (47), (51) and (54) to (56), and made amendments in place of amendments (4) to (7), (13), (40), (41) and (43); and requesting the reconsideration of the bill in respect of the amendments disagreed to and the concurrence of the Senate in the amendments made by the House.

Ordered that the message be considered in Committee of the Whole immediately.

House of Representatives message—

Schedule of the amendments made by the House of Representatives in place of Senate amendments disagreed:

(1) Schedule 1, item 24, page 6 (after line 28), after the definition of Federal Magistrate, insert:

former judge means a person who has been (but is no longer):

(a) a Judge; or

(b) a judge of a Supreme Court of a State.

(2) Schedule 1, item 24, page 7 (after line 2), after the definition of issuing authority, insert:

listed former judge means a former judge included in a list kept under section 34AC.

(3) Schedule 1, item 24, page 7 (line 26), omit “Judge.”, substitute “Judge; or”.

(4) Schedule 1, item 24, page 7 (after line 26), at the end of subsection 34AB(1), add:

(c) a listed former judge.

(5) Schedule 1, item 24, page 8 (after line 3), after section 34AB, insert:

34AC List of former judges consenting to appointments

(1) The Minister must cause to be kept a list of names of former judges who have consented to being appointed as issuing authorities, prescribed authorities or both.

(2) The Minister may invite a former judge to consent:

(a) to being appointed as an issuing authority, a prescribed authority or both; and

(b) to having the former judge's name included in the list.

(3) If the former judge consents, the Minister must cause the former judge's name to be included in the list, together with an indication of whether the former judge consents to being appointed as an issuing authority, a prescribed authority or both.

(4) If a former judge whose name is included in the list requests the Minister:

(a) to have the former judge's name removed from the list; or

(b) to have the list indicate that:

(i) the former judge no longer consents to being appointed as an issuing authority; or

(ii) the former judge no longer consents to being appointed as a prescribed authority;

the Minister must cause the list to be amended to give effect to the request.

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

(6) Schedule 1, item 24, page 8 (line 6), after “who”, insert “either is a listed former judge listed as consenting to the appointment or”.

(7) Schedule 1, item 24, page 8 (line 11), after “a person”, insert “who holds an appointment to the Administrative Appeals Tribunal described in subsection (1)”.

(8) Schedule 1, item 24, page 9 (after line 31), after subsection (3), insert:

(3AA) The procedural statement is to deal with at least the following matters:

(a) informing the following persons about the issue of a warrant under section 34D:

(i) the prescribed authority before whom a person is to appear for questioning under the warrant;

(ii) the Inspector-General of Intelligence and Security;

(iii) police officers;

(b) transporting a person taken into custody, or detained, under this Division in connection with such a warrant;

(c) facilities to be used for questioning of a person under such a warrant;

(d) a prescribed authority's obligation under section 34E to inform a person appearing before the prescribed authority for questioning under such a warrant of the matters mentioned in that section;

(e) arrangements under sections 34H and 34HAA for the presence of an interpreter during questioning of a person under such a warrant;

(f) making recordings under section 34K;

(g) the periods for which a person may be questioned continuously under such a warrant;

(h) the periods for breaks between periods of questioning of a person under such a warrant;

(i) facilities to be used for detaining a person in connection with such a warrant;

(j) arrangements for the person to whom such a warrant relates to contact other persons in accordance with the warrant (including provision of facilities under paragraph 34F(9)(c) for the person to make a complaint orally to the Inspector-General of Intelligence and Security or the Ombudsman);

(k) conducting searches under section 34L;

(l) the periods for allowing a person to whom such a warrant relates an opportunity to sleep;

(m) providing a person to whom such a warrant relates with:

(i) adequate food and drink (taking account of any specific dietary requirements the person may have); and

(ii) adequate medical care.

(9) Schedule 1, item 24, page 11 (line 9), after “Judge”, insert “, a listed former judge”.

(10) Schedule 1, item 24, page 14 (line 31), omit “before the”, substitute “before a”.

(11) Schedule 1, item 24, page 19, after proposed section 34HAA, insert:

34HAB Inspector-General of Intelligence and Security may be present at questioning, taking into custody or detention

To avoid doubt, for the purposes of performing functions under the Inspector-General of Intelligence and Security Act 1986, the Inspector-General of Intelligence and Security, or an APS employee assisting the Inspector-General, may be present at the questioning, taking into custody, or detention, of a person under this Division.

(12) Schedule 1, item 24, page 19 (after line 9), at the end of subsection 34HA(1), add:

Note: For example, the Inspector-General may be concerned because he or she has been present at a questioning under section 34HAB, or because a person in detention has made a complaint under a section mentioned in paragraph 34F(9)(b).

(13) Schedule 1, item 24, page 20 (after line 9), after section 34J, insert:

34JA Entering premises to take person into custody

(1) If:

(a) either a warrant issued under section 34D or subsection 34F(6) authorises a person to be taken into custody; and

(b) a police officer believes on reasonable grounds that the person is on any premises;

the officer may enter the premises, using such force as is necessary and reasonable in the circumstances, at any time of the day or night for the purpose of searching the premises for the person or taking the person into custody.

(2) However, if subsection 34F(6) authorises a person to be taken into custody, a police officer must not enter a dwelling house under subsection (1) of this section at any time during the period:

(a) commencing at 9 pm on a day; and

(b) ending at 6 am on the following day;

unless the officer believes on reasonable grounds that it would not be practicable to take the person into custody under subsection 34F(6), either at the dwelling house or elsewhere, at another time.

(3) In this section:

dwelling house includes an aircraft, vehicle or vessel, and a room in a hotel, motel, boarding house or club, in which people ordinarily retire for the night.

premises includes any land, place, vehicle, vessel or aircraft.

(14) Schedule 1, item 24, page 20 (after line 9), after proposed section 34JA, insert:

34JB Use of force in taking person into custody and detaining person

(1) A police officer may use such force as is necessary and reasonable in:

(a) taking a person into custody under:

(i) a warrant issued under section 34D; or

(ii) subsection 34F(6); or

(b) preventing the escape of a person from such custody; or

(c) bringing a person before a prescribed authority for questioning under such a warrant; or

(d) detaining a person in connection with such a warrant.

(2) However, a police officer must not, in the course of an act described in subsection (1) in relation to a person, use more force, or subject the person to greater indignity, than is necessary and reasonable to do the act.

(3) Without limiting the operation of subsection (2), a police officer must not, in the course of an act described in subsection (1) in relation to a person:

(a) do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the officer); or

(b) if the person is attempting to escape being taken into custody by fleeing—do such a thing unless:

(i) the officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the officer); and

(ii) the person has, if practicable, been called on to surrender and the officer believes on reasonable grounds that the person cannot be taken into custody in any other manner.