Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Hansard source

While we find that, I will address the points made by Senator Ludwig. I will return to Senator Brown’s question in a moment. We have to look at the difference between a prescribed authority and an issuing authority. An issuing authority is a judicial figure who issues the warrant. The prescribed authority is a retired member of the judiciary who oversees the questioning and has a supervisory role, if you like. You have to remember that they are two different roles.

The issuing authority gets a copy of the warrant with a statement of the facts which form the basis of the request for the warrant to be issued. Of course you would want the facts to be disclosed to the person who issues the warrant; you would not want a warrant issued capriciously or in inappropriate circumstances. You have to fully inform that person of the situation so that they can make an informed decision.

The situation with the prescribed authority is somewhat different. They get a copy of the warrant before the questioning commences. However, they do not have the statement of facts which the issuing authority has—and appropriately so. There is no aspect of it which would aid them in their role; their role is quite different. It is more of a supervisory role. That is why the government is of the view that it is simply not necessary and it does not see how it advances the situation at all.

Senator Brown’s question dealt with section 34ZY. That section declares that instruments made under the bill are not legislative instruments. The section is intended to merely restate the position in the current act—that is, to be declaratory of the law. It was included to clarify that instruments created under division 3, other than the ASIO protocol, are not legislative instruments. There are a number of written instruments that can be made under division 3 of part III of the act, as proposed to be amended by the bill. Those instruments are not of a legislative character.

Section 34ZX allows the minister to make guidelines relating to financial assistance. Those guidelines are intended to be made under subsection (4) of that section and are not expected to be legislative in character. They are expected to cover procedural issues, such as the process for lodging a financial assistance application and the level of fees available to barristers and solicitors representing the person who is questioned or detained. As the guidelines would not affect a person’s right to apply for financial assistance, they are expected to be administrative in character.

Section 34ZY therefore serves a declaratory function. There is no policy intention to exempt any instrument that is legislative in character. That distinguishes the various instruments that I have referred to. If Senator Brown has any further questions, we can accommodate him.