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Tuesday, 10 December 2002
Page: 7611

Senator ELLISON (Minister for Justice and Customs) (8:17 PM) —by leave—I move government amendments (2) to (8), (13) and (16) on sheet DT377:

(2) 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.

(3) 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.

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

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

(c) a listed former judge.

(6) 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.

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

(8) 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)”.

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

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

Government amendments (2) to (8), (13) and (16) make a range of amendments to the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 to include former judges as persons who may be appointed as issuing and prescribed authorities under the bill. The Senate Legal and Constitutional References Committee recommended that former judges should perform these roles and that a panel of former judges should be established for that purpose, as opposed to the existing provisions providing for these roles to be performed by federal judges, federal magistrates and other prescribed authorities and senior legal members of the Administrative Appeals Tribunal. It is the government's view that it is neither appropriate nor workable to limit the pool of potential issuing and prescribed authorities to former judges.

The pool of retired judges who are willing and able to do the job will be quite small. This could cause serious operational difficulties—for example, in the event of a number of warrants being executed simultaneously or in jurisdictions such as Western Australia, South Australia and the Northern Territory where the pool of retired judges is small. However, the government amendments include former judges amongst the classes of persons who may be appointed as issuing and prescribed authorities. This will ensure that an adequate number of issuing and prescribed authorities are available to meet operational needs. The amendments provide for the Attorney-General to maintain a register of former judges who have consented to be appointed.

What we have here is an accommodation of the concerns of those people who wanted to include former judges. We do not believe a panel could consist of former judges alone due to the lack of number of those judges and the requirement that they would have to consent—we have seen that the Federal Court judges themselves do not like being involved in the issuing of warrants. It is reasonable to assume that former judges would not necessarily want to become involved in this process. I know the opposition has amendments in relation to this—and I think that they are best left to be addressed when those amendments arise—but there are further restrictions that others and the opposition would have in relation to these former judges which we believe restrict the number even further. In the case of Western Australia, of which I have some personal knowledge, the number of retired judges is not great and, when you look at the fact that you would have to have the consent of that person, it would be unworkable to rely on a pool that consisted only of former judges. In the interests of accommodating the concerns that were raised by the references committee, we are, by these amendments, increasing the pool to include that cohort of persons.