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 31 MESSAGE FROM THE SENATE—AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION LEGISLATION AMENDMENT (TERRORISM) BILL 2002 [NO. 2]

Message No. 279, 25 June 2003, from the Senate was reported returning the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 [No. 2] with amendments.

Ordered—That the amendments be considered forthwith.

On the motion of Mr Williams (Attorney-General), amendments Nos 1 to 15, 17 to 22, 24 to 29, 31, 35, 36, 38 to 56 and 59 to 77 were agreed to, after debate.

Mr Williams moved—That amendments Nos 30, 33, 34, 37, 57 and 58 be disagreed to.

Question—That the amendments be disagreed to—put and passed—Mr Organ dissenting.

Mr Williams presented reasons, which were circulated, and are as follows:

Reasons of the House of Representatives for disagreeing to the amendments of the Senate

Senate Amendment Number (30)—Rights while in detention

This amendment inserts a new provision that requires the prescribed authority to inform a person of their right to contact a lawyer at any time.

The House of Representatives does not accept this amendment as it adds nothing to the provision. The Bill already makes clear a person's entitlement to contact a lawyer of their choice subject to conditions set out in section 34TA. The amendment merely repeats what is apparent on the face of the legislation.

Accordingly, the House of Representatives does not accept this amendment.

Senate Amendment Numbers (33) and (34)—Onus of proof

These amendments remove notes to subsections 34G(4) and (7).

The House of Representatives does not accept these amendments as the notes explain that the defendant bears an evidential burden of proof in relation to these matters in accordance with Commonwealth criminal law policy. This is not the same as reversing the onus of proof. The prosecution still has to prove the offence beyond reasonable doubt. It is an evidential burden only.

Commonwealth criminal law policy is that this should only be allowed in cases where the matters to be proved are peculiarly within the knowledge of the defendant and are difficult and costly for the prosecution to disprove beyond a reasonable doubt, as is the case in respect of these provisions.

Accordingly, the House of Representatives does not accept these amendments.

Senate Amendment Number (37)—Questioning Regime

This amendment amends Government amendments to reduce the period of questioning from a maximum of 168 hours to 72 hours.

The amendment reduces the effectiveness of the questioning regime. Under the Government's proposal a warrant would allow a total of 24 hours of questioning in 8 hour blocks, over a maximum period of 7 days (168 hours).

The Opposition's proposal does not afford any greater protection to a subject of a warrant, it simply reduces the period of time in which important information can be obtained. The Government has already put in place strong safeguards that protect the rights and well-being of persons detained under the Bill for questioning.

Accordingly, the House of Representatives does not accept this amendment.

Senate Amendment Number (57) and (58)—Lawyer of choice

These amendments would require the prescribed authority to make an assessment of whether there is a real possibility that, in contacting a particular lawyer, a person involved in a terrorism offence may be alerted that the offence is being investigated or that a relevant record or thing may be destroyed, damaged or altered.

The House of Representatives does not accept these amendments as the Bill already provides for the provision of a lawyer of choice, with a range of safeguards to protect the disclosure of sensitive information. Under these arrangements, while the prescribed authority may direct that the subject not have access to their lawyer of choice, the subject of a warrant can then choose another lawyer.

This means that, subject to section 34TA which allows the prescribed authority to refuse access to a lawyer of choice in certain circumstances, a person may have access to a lawyer at any stage of the proceedings.

Accordingly, the House of Representatives does not accept these amendments.

On the motion of Mr Williams, the reasons were adopted.

On the motion of Mr Williams, amendments Nos 16, 23 and 32 were disagreed to and Government amendments Nos 1 to 3 were made in place thereof.