Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

That did not answer my question, though. I was referring to the role very guardedly. We can call it ‘process driven’. If you had heard my speech on the second reading, and if you had been here when Senator Ellison was here, you would have understood that I have indicated that they are very important roles—both of them. I was simply trying to reduce the argument down so that you might be able to understand it, but it seems that you are stuck on words and fail to understand the argument that I am putting. I will go back to the particular points. It might seem at first blush that the role of the prescribed authority is, as you have indicated, an important role to make sure that all of those safeguards are in place and that they might be reasonably identifiable. But they relate to the operation of the legislation vis-a-vis the person being questioned, vis-a-vis the questioners, and how that proceeds. They are process matters.

What I am arguing is one step further than that. You may have an argument, Senator Abetz, that at that point the prescribed authority does not require any more than simply the warrant to undertake those duties. That would be the sensible position, except for subsection (4) under 34HB, which gives a very broad discretion. It seems that this is what you are doing and, if that is so, I am happy for you to state it. You are saying that, in respect of the prescribed authority, they will only have the warrant—and of course listening to the questions that might be asked which may in fact be a line of questioning where it is not easy to discern whether it would provide or substantially assist the collection of intelligence that is important in relation to a terrorism offence, or they only have to rely on the questioner to tell them that it is important. That will not in itself allow the prescribed authority to come to the conclusion that there are reasonable grounds for believing that permitting the continuation would substantially assist. That is an independent exercise of their ability to not only read the warrant and listen to the questioning but also understand the underpinning of that warrant—in other words, the statement of facts and issues that make up that warrant. In that way, they may be able to discern whether there are reasonable grounds. If that is not the ability you want to give to the prescribed authority, then say so and I will hold my tongue. I am simply pointing out that, if you think the prescribed authority does not have a discretion where the facts and circumstances may assist, say that.