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Wednesday, 25 June 2003
Page: 12586


Senator ELLISON (Minister for Justice and Customs) (6:52 PM) —by leave—I move government amendments (1) to (6) on sheet RA241:

(1) Schedule 1, item 24, page 9 (line 28), omit “person.”, substitute “person; and”.

(2) Schedule 1, item 24, page 9 (after line 28), at the end of subsection (2), add:

(d) if one or more warrants were issued under section 34D as a result of the previous requests—a statement of:

(i) the period for which the person has been questioned under each of those warrants before the draft request is given to the Minister; and

(ii) if any of those warrants authorised the detention of the person—the period for which the person has been detained in connection with each such warrant before the draft request is given to the Minister.

(3) Schedule 1, item 24, page 11 (before line 30), before subsection (4), insert:

(3D) If, before the Director-General seeks the Minister's consent to the request (the proposed request), the person has been detained under this Division in connection with one or more warrants (the earlier warrants) issued under section 34D, and the proposed request is for a warrant meeting the requirement in paragraph 34D(2)(b):

(a) the Minister must take account of those facts in deciding whether to consent; and

(b) the Minister may consent only if the Minister is satisfied that the issue of the warrant to be requested is justified by information that is additional to or materially different from that known to the Director-General at the time the Director-General sought the Minister's consent to request the issue of the last of the earlier warrants issued before the seeking of the Minister's consent to the proposed request.

This subsection has effect in addition to subsection (3).

(4) Schedule 1, item 24, page 12 (after line 21), after subsection (1), insert:

(1A) If the person has already been detained under this Division in connection with one or more warrants (the earlier warrants) issued under this section, and the warrant requested is to meet the requirement in paragraph (2)(b):

(a) the issuing authority must take account of those facts in deciding whether to issue the warrant requested; and

(b) the issuing authority may issue the warrant requested only if the authority is satisfied that:

(i) the issue of that warrant is justified by information additional to or materially different from that known to the Director-General at the time the Director-General sought the Minister's consent to request the issue of the last of the earlier warrants issued before the seeking of the Minister's consent to the request for the issue of the warrant requested; and

(ii) the person is not being detained under this Division in connection with one of the earlier warrants.

This subsection has effect in addition to subsection (1).

(5) Schedule 1, item 24, page 21 (after line 25), at the end of Subdivision B, add:

34HC Person may not be detained for more than 168 hours continuously

A person may not be detained under this Division for a continuous period of more than 168 hours.

(6) Schedule 1, item 24, page 30 (after line 26), after section 34Q, insert:

34QA Reporting by Inspector-General on multiple warrants

(1) This section imposes requirements on the Inspector-General of Intelligence and Security if:

(a) a person is detained under this Division in connection with a warrant issued under section 34D; and

(b) one or more other warrants (the later warrants) meeting the requirement in paragraph 34D(2)(b) are issued later under that section in relation to the person.

(2) The Inspector-General must inspect a copy of the draft request given to the Minister under subsection 34C(2) for each of the warrants, to determine whether the draft request for each of the later warrants included information described in paragraph 34C(3D)(b).

Note: Paragraph 34C(3D)(b) describes information additional to or materially different from that known to the Director-General at the time the Director-General sought the Minister's consent to request the issue of the last warrant that:

(a) was issued under section 34D before the seeking of the Minister's consent to the request proposed in the draft request; and

(b) was a warrant in connection with which the person was detained under this Division.

(3) The Inspector-General must report on the outcome of the inspection in his or her annual report for the year in which he or she carries out the examination. For this purpose, annual report means a report under section 35 of the Inspector-General of Intelligence and Security Act 1986.

We have had quite extensive debate on these amendments and I would like to address them in the context of the previous debate we have had on the questioning regime. There has been discussion with the opposition on government amendments (1) to (6). The government has moved amendments (1) to (5) to provide for the issuing of a warrant to allow for a total of 24 hours of questioning in eight-hour blocks over a maximum period of seven days—that is, 168 hours. This replaces the current provisions in the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 [No. 2] which passed the other place that provided for the possibility of rolling warrants over the 168-hour period.

During debate on these amendments, the question arose as to whether at the end of the 168-hour period there is the capacity to seek a further warrant or warrants in relation to a person who has been the subject of a previous warrant under the bill. It has always been the government's position that there may be circumstances where subsequent warrants may be necessary. This does not mean that a warrant can effectively be rolled over. Once the warrant period has ended, a new warrant would need to be sought and issued to permit a further period of detention, and the strict requirements for seeking a warrant—and the requirements for the issue of a warrant under the bill—will need to be satisfied again. This means that the minister and the issuing authority—which is a federal judge or a federal magistrate—must consider that the requirements of the bill have been made out. This means that there must be a break between the ending of one warrant and the commencement of another.

The government has always been clear on this point. In fact, the government clearly rejected the recommendation from the Senate Legal and Constitutional References Committee which would have prevented the granting of a further warrant for the same person within seven days of the end of the second warrant period—in effect, a seven-day immunity period. The government has always made it emphatically clear that it could not agree to any such immunity and that the public would not tolerate that kind of red tape, which could put public safety at risk. Any such immunity could impede investigations in urgent circumstances and could potentially allow terrorists immunity for a period of up to seven days. Any such immunity could potentially play directly into the hands of terrorists.

These types of inflexible and arbitrary time limits are the perfect way to prevent our intelligence agencies from doing their important work and would potentially allow those being questioned to manipulate and frustrate the questioning process. If our agencies can make a case for a subsequent warrant to conduct further questioning, they should not be prevented from doing so, particularly in the circumstances envisaged by this bill—that is, obtaining the intelligence necessary for preventing potential terrorist activity. Notwithstanding that the government maintains that the effect of the legislation is clear, the government is now moving amendments to further detail this matter. It is doing so on the basis of the opposition's public undertakings that it will support the passage of this bill.

The government does not believe that any amendment is strictly necessary. However, to put this matter beyond doubt, the government is moving amendments that will make clear, on the face of the legislation, that a person may not be detained for a continuous period of more than 168 hours. A request for consent to issue a warrant must include, in addition to a statement of particulars and outcomes of all previous requests for the issue of a warrant under section 34D, details of the duration of detention and questioning under those warrants. In deciding whether to consent to the making of a request for a subsequent warrant, the minister must (1) take into account the fact of the issue of the previous warrant and (2) only consent to the making of the request if the minister is satisfied that a subsequent warrant is justified on the basis of information additional to or materially different from the information available to the Director-General of ASIO at the time the director-general sought the previous warrant. In considering a request for a subsequent warrant, the issuing authority must (1) take into account the fact of the issuing of the previous warrant and (2) be satisfied that issuing the requested warrant is justified on the basis of information additional to or materially different from the information available to the Director-General of ASIO at the time the director-general sought the previous warrant.

The issuing authority further may only issue that warrant if the person is not currently being detained under an existing warrant. The combined effect of these amendments is that it makes express, on the face of the legislation, that due consideration must be given to the existence of the previous warrant and that the existing high threshold for the issuing of a further warrant is assessed having regard to the fact that a warrant has previously been issued in relation to that person. It makes a specific test in relation to second or subsequent warrants. The amendments make clear that both the Attorney-General and the issuing authority must be satisfied that a subsequent warrant is justified because of additional information or materially different information that was not available to the director-general at the time the previous warrant was requested.

In this respect, we should not forget the role of the Inspector-General of Intelligence and Security, who has the power to review all files relating to any of ASIO's cases, including current cases, and make determinations about compliance with relevant legislation. The inspector-general's oversight role is further strengthened by government amendment (6), which imposes a clear requirement on the inspector-general to inspect copies of requests for subsequent warrants. Government amendment (5) is also consistent with the principle that a person cannot be detained for a continuous period of more than 168 hours but does not prevent a further warrant being issued after the person has been released. The explanatory memorandum makes it clear that this means that a person must be released if the questioning period ends and that the maximum time during which a person may be continually detained under one warrant cannot exceed 168 hours.

I have outlined the reasons behind amendments (1) to (5). I mentioned government amendment (6), which relates to review by the inspector-general. The government is also proposing to include a new provision that will strengthen the Inspector-General of Intelligence and Security's oversight role in relation to new warrants. Government amendment (6) imposes a new requirement on the inspector-general to inspect copies of requests for subsequent warrants. Under the IGIS Act, the inspector-general may inquire into any matter that relates to ASIO's compliance with the law and the propriety of particular activities of ASIO. The IGIS may conduct such additional inspections of ASIO as he considers appropriate to give effect to the objects of the IGIS Act. The inspector-general already has an extensive role under the bill, including the power to inspect any warrant requested under the bill and the power to attend the questioning of a person under a warrant.

As a result of the proposed amendments, the inspector-general must consider whether the request for a subsequent warrant includes information that is additional to or materially different from information that formed the basis for the previous warrant request. The amendments also require the inspector-general to report on the outcome of the inspection in his or her annual report, an unclassified version of which is tabled in parliament. Under the IGIS Act, the Prime Minister is obligated to provide the Leader of the Opposition with a copy of the report, including any classified components of the report that cannot be tabled in parliament.

Those aspects are dealt with in government amendments (1) to (6), which have come about as a result of discussions with the opposition. Those amendments have been circulated and the explanatory memorandum for them has also been circulated. The previous government amendments which were postponed have, as I have said, been the subject of extensive debate. We now believe that with these amendments we have a balance between security interests and the interests of the individual.