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Wednesday, 29 May 1996
Page: 1350

Senator VANSTONE (Minister for Employment, Education, Training and Youth Affairs)(6.05 p.m.) —I understand the goodwill of Senator Spindler. I do not attribute any bad faith at all to your position. But I would just come back to the point I made to you a few minutes ago: I do not think what you are suggesting gets over the problems. I understand the problem you want to get over. It has been a problem for everyone; no doubt it was for the government, as it then was, a difficult decision to make. But, in the end, there has to be a balance about accountability, effectiveness and constitutionality. Otherwise we are engaged in a debating exercise that is going to make no difference at all to putting these creeps away.

I understand that Senator Cooney's suggestion may be an even further improvement; but I still say that it is very marginal. Because what were the key evils we wanted to get at? Firstly, the problem that judicial officers will decline to do this. They will decline to take on this task. Presumably, no-one here is disputing the advice that I have been offered by the Attorney-General's officers, that these judicial officers are already declining to exercise the power given to them with respect to telephone intercepts. You understand that this is a much more serious task you are asking them to do, and we expect therefore—it is axiomatic—that they will decline to do this. So you pass a bill through parliament that has all the intentions of getting at these creeps, these peddlers in drugs, to find that the judiciary, not out of any bad faith but out of their belief as to what is appropriate, decline to take on these tasks.

What will you have? You will have a bill that is going nowhere fast and a whole lot of drug runners who still get away. That is one point. You do not, Senator Spindler, address the question by the amendments. The amendments proposed by Senator Cooney may be very sensible, they may sound good. You might think, `Oh well, that's made it better'— you might think a lot better, and I would say not much better. But in the end whether it is better or not is irrelevant to the question of whether or not you get over the key problem.

The key problem is: at the moment judicial officers are declining to exercise their powers with respect to telephone intercepts. This is a much more serious matter and, therefore, you can conclude that they will decline to exercise these powers. So, where there is an operation that could be effective and catch one of these people rather than just the courier, that opportunity may be lost because of timing—which is, in fact, the second point. But because you require this and there will be judicial officers who will decline, you will run into the timing problem. I would say that, even if you were able to find a judge immediately, you may well on occasions face that extra timing problem when you get a courier who comes in—and that is where the controlled operation is seeking to start.

So you have not fixed the problem of judicial officers perhaps declining. Even if those judicial officers did not decline, you would still face a timing problem with those matters that suddenly arise in association with an intercept at an airport. Not all of these things are a consequence of law enforcement intelligence through, for example, Asia, where we think we know what will happen in advance and we can put someone in there to be a part of it. They are not all like that.

So you have not fixed the declining of judicial officers problem; you have not fixed the timing problem in that the drug runners may get away and you will end up only with the couriers; and, in our view, you still have not fixed the constitutional problem because you are still asking a judicial officer to exercise what we believe is a decision that can be challenged constitutionally. I am interested to hear an argument as to why you think you have got around it. Have you made it better? Yes, maybe. But have you got over each or any of those hurdles? No.