David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Hansard source

The government does not support amendment (24) and consequential amendments (23) and (25). Amendment (24) would remove a specific category of time that is specified by a magistrate and can be disregarded from the investigation period when a person has been arrested for a terrorism offence. This time may be necessary to, for example, collate information from an overseas country before presenting it to a suspect during questioning or waiting for overseas jurisdictions to respond to requests for critical information from the Australian Federal Police. The rationale for this category of disregarded time is that it is not always possible to predict the circumstances where time should be disregarded from the investigation period to enable a proper precharge interview to take place. This ambiguity is balanced by requiring these periods of time to be authorised by a magistrate. Any time that is specified by a magistrate must be reasonable for it to be disregarded from the investigation period. Removing this category of disregarded time would not recognise the complex nature of terrorism investigations. The National Security Legislation Amendment Bill 2010 improves upon these provisions by setting a cap of seven days on the amount of time that can be specified by a magistrate and disregarded from the investigation period.

In addition, the bill will enhance existing safeguards by requiring an application for specified disregarded time to be in writing approved by a senior member of the AFP and given to the arrested person or their legal representative prior to a magistrate considering their application. The seven-day cap for detention responds directly to the Clarke inquiry report, which suggested that a cap of this duration would be appropriate. A single cap of 48 hours as proposed by the Greens does not adequately reflect the complexities of terrorist investigations. Unspecified disregarded time allows for the exchange of information with foreign law enforcement agencies.

The government does not support the Australian Greens’ opposition to proposed section 23DB(11). The government’s amendment will set up a maximum cap of seven days on the amount of time that can be specified by a magistrate and disregarded from the investigation period. This amendment is designed to provide greater certainty and directly responds to the Clarke inquiry report, which suggested that a seven-day cap would be appropriate.

The government does not support the Australian Greens’ proposal to remove proposed sections 23DC and 23DD. These sections will set out the process for making an application for a specified period of time that could then be disregarded under proposed section 23DB(9)(m). Proposed section 23DD will set out the process by which a magistrate could specify a period of time that could then be disregarded under proposed section 23DB(9)(m). These are important provisions that provide significant safeguards.

Lastly, with respect to Greens amendment (28), the government does not support that amendment. This amendment would increase the maximum period by which the investigation period could be extended, when a person has been arrested for a terrorism offence, from 20 hours to 44 hours. This would mean that a person could be detained for up to 48 hours as opposed to 24 hours. I understand this amendment is to complement the proposed Greens amendment to remove the provisions for time that can be specified by a magistrate and disregarded from the investigation period. However, a total investigation period of two days is too restrictive for law enforcement agencies in terrorism cases. The government does not believe the provisions allow arbitrary detention and does believe that they are consistent with the International Covenant on Civil and Political Rights. There are strict legislative requirements and judicial oversight, which are designed to ensure detention is never arbitrary.