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Tuesday, 13 June 2006
Page: 144

Senator LUDWIG (8:59 PM) —We have heard from Minister Ellison—and it was an answer that I thought I might get from him—that there is a difference between an issuing authority and a prescribed authority. It seems relevant for the issuing authority to have the statement of facts but not so relevant for the prescribed authority to have it. It is really a handy and neat little trick.

The role of the issuing authority is clearly different to that of the prescribed authority but it is no less important to the process to ensure that there is fairness and due process. The prescribed authority—that is, the person that the minister by writing appointed a prescribed authority, who has served as a judge in one or more superior courts for a period of five years and no longer holds a commission as a judge of a superior court—should not be excluded from having that information before them. The minister may by writing appoint as an issuing authority a person who is a federal magistrate or a judge. Of course, the authorities do have differing roles but they are both significant and important in the overall process of the powers that are going to be exercised under this legislation.

The prescribed authorities are people who in the view of the minister, as in the act, play an important role, and they are appointed from a very limited class. In fact, division 3, part III, section 34B, the ASIO Act 1979 states:

(2) If the minister is of the view that 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 an equivalent) and has done so for a period of at least 5 years.

Looking at their role in the proceedings, 34E states:

(1) When the person first appears before a prescribed authority for questioning under the warrant, the prescribed authority must inform the person of the following:

(a) whether the warrant authorises detention of the person by a police officer and, if it does, the period for which the warrant authorises detention of the person;

(b) what the warrant authorises the Organisation to do;

(c) the effect of section 34G—

which I might come to shortly—

(including the fact that the section creates offences);

(d) the period for which the warrant is in force;

(e) the person’s right to make a complaint orally or in writing—

to various persons, including—

(i) to the Inspector-General of Intelligence and Security ...

                  …         …           …

(f) the fact that the person may seek from a federal court a remedy relating to the warrant or the treatment of the person in connection with the warrant;

(g) whether there is any limit on the person contacting others and, if the warrant permits the person to contact identified persons at specified times when the person is in custody or detention authorised by the warrant, who the identified persons are and what the specified times are.

Of course, their role is, by its very nature, separate to that of the issuing authority but it is no less important in ensuring that all of those matters are dealt with, seen to be done and done by the detaining authority.

To do their role adequately it would seem sensible for them to have that information before them. It would seem sensible to ensure that when you provide the warrant you also provide the facts and statements that underpin the warrant. You have to look more broadly than simply at the short words that might be on the warrant. The statement that is contained within the warrant might be quite limited and the prescribed authority could miss the contextual setting, the matrix of facts and circumstances that underpin the warrant, that they need to be aware of to be able to exercise their role in accordance with legislation. It would seem logical to me and of no great impost for that information to be provided.

I was hoping the minister might have tried the secrecy line. There are provisions that ensure that matters are kept secret. But the minister chose to use the line that they are a different body and therefore we can treat them differently. The parliamentary joint committee had a look at the matter and came to the conclusion that they should have the facts and information on the circumstances. It seems to me that they came to a decision which was quite sensible. They understood, as I suspect the minister also did but failed to acknowledge, that you do have to take into consideration the contextualisation of the issues to be able to fulfil your duties properly and appropriately under the legislation.

It seems to me that I can argue this point but the minister is not going to concede it. He is not going to see the proper course nor amend the legislation to accord with the proper view which the parliamentary joint committee came to and which this government should also come to. I will not take up a significant amount of the chamber’s time on this issue. I will leave that to the second amendment.