David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I will continue the remarks I was making before question time with respect to delayed notification search warrants. The legal framework will require the Ombudsman to conduct an inspection every six months. This will ensure that the inspection of records is more frequent and that the Ombudsman has a more comprehensive external oversight role. This amendment is in response to recommendation 8 of the committee report.

With respect to search warrant execution and the Australian Crime Commission Act amendments, I am proposing amendments to the definition of ‘executing officer’ in items 4 and 19 of schedule 3 of the bill so that a search warrant may only be executed by, or reassigned to, a person within the ACC who is also a qualified member of the AFP or a member of a police force of a state or territory. Making this amendment would eliminate the possibility of a non-police officer executing a search warrant and would also ensure that only a police officer has the capacity to exercise the use of force. This responds to recommendation 9 of the committee report and is consistent with the Crimes Act model.

With respect to further amendments to the Crime Commission Act relating to legal representation and examination, I will move an amendment to remove proposed section 25B of the bill. This amendment responds to recommendation 10 of the committee report. Removing proposed section 25B would ensure that no witness would be examined without a legal representative unless it is his or her express and informed desire to proceed without representation. This complies with the High Court pronouncements in the case of Dietrich.

The next amendment to the bill that I am proposing would correct an anomaly in the Australian Federal Police Act. The amendment is unrelated to the national investigative powers or witness identity matters. I propose that the maximum penalty of two years imprisonment for the secrecy offence in section 60A(2) of the act be reinserted. This penalty provision was unintentionally omitted when the commencement of the Law Enforcement Integrity Commission (Consequential Amendments) Act 2006 resulted in section 60A(2) of the Australian Federal Police Act being repealed and replaced. The re-enactment of this penalty would be retrospective to when the penalty was repealed. Although such retrospectivity is unusual and is likely to attract criticism from the Senate Standing Committee for the Scrutiny of Bills and others, I consider that on balance it is better not to leave a gap in the capacity to prosecute breaches giving rise to such an offence. The secrecy offence has been in force since it was first enacted and there is no legitimate excuse for conduct that breaches this provision. Individuals should not be able to escape prosecution because of the previous inadvertent repeal of the penalty.

With respect to the aviation amendments, a minor but necessary amendment that I am also proposing is the correction of an anomaly in the Crimes (Aviation) Act. Currently, section 15 of that act makes it an offence for a person on board a ‘division 2 aircraft’—an aircraft flying interstate or overseas—to do, or omit to do anything, that would be an offence against the law of the Commonwealth or the Crimes Act 1900 (ACT). Section 15 is intended to ensure that standard criminal offences—for example, theft and assault—always apply on such flights. However, with the current amendments to the Crimes Act (ACT) and the Criminal Code 2002 (ACT) many offences are no longer in the Crimes Act (ACT)—for example, theft—and instead appear in the Criminal Code (ACT). I propose amending section 15 of the Crimes (Aviation) Act so that it applies to Criminal Code conduct on relevant flights. In addition, to provide flexibility in the event of future changes to ACT criminal law, I propose that section 15 of the Crimes (Aviation) Act provide that regulations may be made to specify ACT law that do or do not apply on relevant flights.

I seek leave to move government amendments (1) to (19) together.

Leave granted.

I move:

(1)   Clause 2, page 2 (at the end of the table), add:

(2)    Schedule 1, item 1, page 6 (after line 21), after the definition of major controlled operation in section 15GC, insert:

nominated Tribunal member means a person in respect of whom a nomination under subsection 15GOB(1) is in force.

(3)    Schedule 1, item 1, page 8 (lines 5 to 7), omit subsection 15GE(3).

(4)    Schedule 1, item 1, page 16 (line 13), after “(4)”, insert “and section 15GOA”.

(5)    Schedule 1, item 1, page 16 (after line 23), after section 15GO, insert:

15GOA  Variations resulting in authority extending beyond 12 months

        (1)    To the extent that a proposed variation of an authority for a controlled operation:

             (a)    is of a kind referred to in paragraph 15GO(2)(a) (extensions of period of effect of authority); and

             (b)    would have the effect that the period of effect of the authority would be longer than 12 months (including any extensions under a previous variation);

the following rules apply:

             (c)    an appropriate authorising officer may not make the variation; and

             (d)    an application (theextension application) for the variation may be made under section 15GP to a nominated Tribunal member, instead of to an appropriate authorising officer; and

             (e)    this Part has effect, in relation to the extension application, as if:

                   (i)    references in sections 15GO, 15GP, 15GQ and 15GR, and in subsection 15GH(2) as applied by subsection 15GQ(2), to an appropriate authorising officer were references to a nominated Tribunal member; and

                  (ii)    references in those provisions to the authorising officer were references to the nominated Tribunal member.

        (2)    To avoid doubt, an extension application made to a nominated Tribunal member must not propose a variation that would authorise participants in the controlled operation to which the application relates to engage in additional or alternative controlled conduct.

15GOB  Minister may nominate AAT members

        (1)    The Minister may, by writing, nominate a person who holds one of the following appointments to the Administrative Appeals Tribunal to deal with extension applications:

             (a)    Deputy President;

             (b)    full-time senior member;

             (c)    part-time senior member;

             (d)    member.

        (2)    Despite subsection (1), the Minister must not nominate a person who holds an appointment as a part-time senior member or a member of the Tribunal unless the person:

             (a)    is enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or of the Australian Capital Territory; and

             (b)    has been so enrolled for not less than 5 years.

        (3)    A nomination ceases to have effect if:

             (a)    the nominated Tribunal member ceases to hold an appointment described in subsection (1); or

             (b)    the Minister, by writing, withdraws the nomination.

        (4)    A nominated Tribunal member has, in relation to the performance or exercise of a function or power conferred on a nominated Tribunal member by this Act, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.

        (5)    In this section:

extension application has the same meaning as in section 15GOA.

(6)    Schedule 1, item 1, page 24 (line 9), omit “Director National Operations”, substitute “Executive Director Operational Strategies, the Executive Director Intelligence Strategies”.

(7)    Schedule 1, item 1, page 28 (after line 6), after paragraph 15HH(2)(b), insert:

           (ba)    in relation to extension applications (within the meaning of section 15GOA) made to a nominated Tribunal member, being applications that would have been made to an authorising officer of the agency but for the operation of section 15GOA:

                   (i)    the number of authorities that have been varied by formal variations of authority, and the number of applications for such variations that have been refused, during the period to which the report relates; and

                  (ii)    the number of authorities that have been varied by urgent variations of authority, and the number of applications for such variations that have been refused, during the period to which the report relates;

(8)    Schedule 1, item 1, page 75 (after line 9), at the end of section 15KP, add:

        (3)    The presiding officer must not:

             (a)    record information disclosed to the presiding officer under subsection (2); or

             (b)    retain or copy a document or other thing provided to the presiding officer under that subsection.

(9)    Schedule 1, item 1, page 84 (line 28), omit “Director National Operations,”, substitute “Executive Director Operational Strategies, the Executive Director Intelligence Strategies”.

(10)  Schedule 1, item 1, page 84 (line 30), omit “at the rank”, substitute “occupying a position”.

(11)  Schedule 2, item 8, page 98 (after line 36), at the end of subsection 3SL(1), add:

Note:   Paragraph (1)(b) does not authorise the acquisition or use of an assumed identity (see Part IAC). The protection provided by Part IAC only applies if the requirements of that Part have been complied with.

(12)  Schedule 2, item 8, page 109 (line 30), omit “12”, substitute “6”.

(13)  Schedule 3, item 4, page 117 (line 23), before “person”, insert “eligible”.

(14)  Schedule 3, item 4, page 117 (line 26), before “person”, insert “eligible”.

(15)  Schedule 3, item 19, page 120 (line 22), before “person”, insert “eligible”.

(16)  Schedule 3, item 19, page 120 (line 23), before “person”, insert “eligible”.

(19)  Page 157 (after line 6), at the end of the Bill, add:

Schedule 7—Minor amendments

Australian Federal Police Act 1979

1  At the end of subsection 60A(2)

Add:

Penalty:  Imprisonment for 2 years.

Crimes (Aviation) Act 1991

2  After subparagraph 15(1)(b)(ii)

Insert:

                (iia)    the Criminal Code 2002 of the Australian Capital Territory in its application to the Jervis Bay Territory; or

3  At the end of paragraph 15(1)(b)

Add:

            or (iv)    any other law of the Australian Capital Territory prescribed by the regulations, in its application to the Jervis Bay Territory;

(Quorum formed)

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

As I understand it, the government amendments have been moved en bloc. I will speak to them in that way. So that we can at least have a debate on some of the issues with regard to the amendments to this bill, given that the government has now moved en bloc its amendments, I can indicate that our amendments (1), (6) and (8) to (12) will no longer be required to be moved. We will still move amendments (2) to (4), and (5). We will not move amendment (7).

In terms of the amendments moved by the government, the Labor Party do thank the government for moving to address the Senate committee recommendations and ensuring that the Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 [2007] has been through reasonable scrutiny in this place. What I think has been lost in the debate on this particular bill is that while there has been some commentary in respect of one part of it—and I will come back to that particular part—the majority of the bill is a tidy-up exercise in addition to an exercise in ensuring that the legislation is up to date and that there is consistency across jurisdictions. That is the greatest import of this bill. It is, as we said in the second reading debate, an omnibus bill that achieves that process.

Turning to the individual amendments moved by the government, amendments (1) to (3) contain various items. I understand there is a sheet which deals with matters which the government proposes by way of amendment. It would be helpful to have that; it was tabled earlier today. There may not have been an opportunity to photocopy it and provide it to the opposition at this point in time, but I make no complaint about that. When we look at the position that the government has outlined, we see that recommendation 1—which is accepted to the extent that, although the government indicates that it departs from the national model legislation developed by the joint working group of the Standing Committee of Attorneys-General and the Australasian Police Ministers Council—is accepted, as it would be rare that a controlled operation would be desirable in circumstances where no suspected offence with a maximum penalty of at least three years was involved. The Labor Party thanks the government for that amendment.

The government has indicated that recommendation 2 has been accepted in part. Recommendation 3 is not accepted, but the alternative recommendation is accepted in part. As fully outlined, recommendation 4 is similarly accepted. I am not sure whether the minister outlined in his statement before parliament today the additional part, which may or may not be presently to hand, as to which amendments go to which recommendations. If he did not, it would be helpful. If the minister is in a position to do that, it might help to facilitate the process. I will assume that the minister does have that information or that his advisers can provide it. That would allow us, when we look at the various amendments, to compare them to the recommendations of the committee and examine the position that the government has indicated on the response to the recommendations of the Senate standing committee.

We note that recommendation 6 is not accepted. The committee recommended that the federal government limit the offences in relation to which delayed notification search warrants may be issued for offences involving terrorism, organised crime, death or serious injury with a maximum penalty of life imprisonment. It is with disappointment that the Labor Party see that the government has not circumscribed that amendment in terms of recommendation 6 of the Senate committee. We differ with the justification. We are more broadly in agreement that the power should exist. We just differ over when it should be available—unlike the Democrats and Greens in respect of this debate. Recommendation 10 and the remaining recommendations have all been either accepted or accepted in part.

I think that demonstrates the strength of the committee. I usually take the opportunity of thanking both the secretariat and the chair of the relevant committee—in this case, it is the Senate Standing Committee on Legal and Constitutional Affairs—for ensuring that there was a joint response from the opposition and the coalition senators, because the strength of the committee process is demonstrated by the ability to obtain recommendations and amendments that accord with those recommendations from the government. Therefore, the committee deserves recognition for that work.

If the government could also indicate which amendments were moved which are not part of the recommendations and which are also not procedural in nature, it would be helpful. I do not expect those which are of a procedural nature to be advised on but, for those which are of a substantive nature, it would be helpful to understand which government amendments have been moved in that way. Of course, this happens when you move them en bloc. We have not had the ability, other than today, to examine them. For the record, what usually occurred with the previous minister was that at some point we would have that type of exercise so that forearmed would be forewarned and so that we could confine the debate in this chamber to the issues which we disputed or disagreed on. Rather than have a wide-ranging debate in the committee stage, we could confine it to the matters which we disagreed on.

It does seem that at least we disagree in respect of confining the delayed notification warrant. On that matter, if I could, I would ask that to be taken out of the bloc because we do not want to agree with the government on that amendment but rather we want to divide on it. We would oppose it and prefer Labor’s amendment in respect of that matter. I think that is reflected in the running sheet. It seems that government amendment (11) is in conflict with opposition amendment (8).

As I said earlier, we will not be moving opposition amendments (1), (6) and (8) to (12), and government amendment (8) would be withdrawn. You have made no change to the delayed notification warrant amendment. If that is right, by the look of it it falls to a position where we can agree with all of those amendments and then continue with our preferred position in respect of opposition amendments (2) to (4), (5) and (7)—if that is helpful.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

I want to ask the minister a question about government amendment (8). I apologise if it was answered while I was walking down to the chamber. I would like an explanation about that amendment. Looking at it, it seems as though there is a concern about the presiding officer—the tribunal member or the judge—being able to keep a record of the interview and the decision. Is there a concern that the tribunal member should not be able to write down and keep record of it? Is it so that it cannot be asked for later? Could the minister explain the rationale behind government amendment (8)?

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

This is in response to recommendation 5 of the committee’s report to amend proposed section 15KP to prohibit the retention, copying or recording by a presiding officer, whether he is a judge or magistrate, of any information or documentation provided to them under that provision—that is, information or documents that relate to an operative’s true identity. So it is about undercover operations.

Although this would lead to a departure from the national model, this proposed amendment would ensure that the true identity of an operative was not revealed or compromised by the actions of the presiding officer, albeit inadvertently. In circumstances where operatives are conducting a controlled operation with organised crime, outlaw motorcycle gangs or drug traffickers, you could understand that, as a sole source of evidence, they would be potentially in great jeopardy and danger were their identities to be revealed. This is a risk management exercise and a security measure for policing.

Question agreed to.

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

I think I have indicated that we will not be moving opposition amendments (1), (6) and (8) to (12). We would then go to the Democrat amendments (1) to (3), as I understand it.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

I want to clarify with Senator Ludwig which amendments he was seeking to withdraw. The Democrats will be supporting the opposition amendments, just as we were happy to support the government amendments, but I was wondering whether perhaps Senator Ludwig would not mind reiterating which ones he was seeking to move and not move.

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

We will not be moving opposition amendments (1), (6) and (8) to (12). If you look at the running sheet, those have nearly fallen within that first government amendment, and opposition amendments (1), (6), (8) to (12) would have been the next amendments to have been moved. We will still move opposition amendments (2) to (4) and (5) but we will withdraw (7).

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

by leave—I move Australian Democrat amendments (1) to (6) on sheet 5327:

(1)    Schedule 1, item 1, page 14 (line 3), omit “principal law enforcement officer”, substitute “authorising officer”.

(2)   Schedule 1, item 1, page 14 (line 15), omit “controlled conduct”, substitute “unlawful conduct”.

(3)   Schedule 1, item 1, page 14 (line 18), omit “controlled conduct”, substitute “unlawful conduct”.

(4)   Schedule 1, item 1, page 14 (lines 20 to 24), omit subsection 15GL(3), substitute:

        (3)    As soon as reasonably practicable after giving an oral authorisation, the authorising officer for the controlled operation must give to the person authorised to engage in controlled conduct and the principal law enforcement officer for the controlled operation a written authorisation stating the matters in subsection (2).

(5)   Schedule 1, item 1, page 14 (line 34), omit “principal law enforcement officer”, substitute “authorising officer”.

(6)   Schedule 1, item 1, page 15 (lines 2 to 6), omit subsection 15GL(8), substitute:

(8)  As soon as reasonably practicable after cancelling an authorisation orally, the authorising officer for the controlled operation must give written notice of the cancellation to the person who was authorised to engage in controlled conduct under the authorisation and the principal law enforcement officer for the controlled operation.

These amendments deal with unlawful conduct and authorisation. We are seeking to amend schedule 1 of the legislation to ensure that the authorising officer and not the principal law enforcement officer be required to identify each person who may engage in unlawful activity for the purposes of the controlled operation. We also seek to identify (a), with respect to law enforcement participants, the nature of the unlawful conduct in which those participants may engage and (b), with respect to civilian participants, the particular unlawful conduct, if any, in which each participant may engage. There are also some related amendments there that relate to written authorisations and cancellations.

Question negatived.

I am wondering whether the Labor Party or the government want to put on record their concerns, or otherwise, with those amendments. In my speech in the second reading debate I outlined some of my concerns, but I thought that particularly the first set of amendments in relation to unlawful conduct was probably not as scary as the government anticipated that it might have been. Obviously the debate is moving forward, but, if anyone would like to place their reasons on record, that would be good.

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

I was going to wait for the government to provide a response, to see what their view was. There is still an opportunity for you to press it.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

The government is opposed to these amendments. Democrat amendments (1), (4), (5) and (6) would remove the two-stage authorisation process contemplated by the bill. The two-stage process was implemented as a result of consultation with law enforcement agencies and it concerns the privacy and protection of individuals involved in a controlled operation. Accordingly, the government has considered the amendments but opposes them.

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

I usually respond to Senator Stott Despoja in these debates. The opposition will not support the amendments. The argument that the minister raises is sound. The opposition have confined ourselves to certain matters, and you obviously would be aware of the position we have adopted, Senator Stott Despoja. The Labor Party have looked at the committee recommendations; we have asked questions about them and received submissions on them. The committee came to a unanimous position about those recommendations to try to improve various parts of the omnibus bill and the various schemes within it. It would not come as any surprise to Senator Stott Despoja that, in this instance, we would confine ourselves to those recommendations. The earlier part of the proceedings was then to sort out which ones were accepted or rejected by the committee, which ones the government has now moved and accepted and which ones the Labor Party no longer need to move here. We will still be moving the remainder of our amendments. We understand in principle the position that Senator Stott Despoja has put but note that, without significant scrutiny of them, the Labor Party cannot find our way clear to support these amendments.

I seek leave to move together opposition amendments (2) to (4) on sheet 5190.

Leave granted.

I move:

(2)    Schedule 1, item 1, page 15 (line 29), after “has effect for”, insert “the lesser of three months or”.

(3)    Schedule 1, item 1, page 17 (after line 23), at the end of the section 15GQ, add:

        (3)    Nothing in this section permits an authorising officer to extend the duration of an authorisation beyond three months from the date of the initial authorisation.

(4)    Schedule 1, item 1, page 17 (after line 23), after section 15GQ, insert:

15GQA  Extension of authorisation

        (1)    An authorisation expires in accordance with section 15GN unless, while the authorisation is in force, a nominated Tribunal member has:

             (a)    reviewed the authorisation; and

             (b)    decided that the authorisation should remain in force for a longer duration.

        (2)    The authorisation must be reviewed by a nominated Tribunal member within two weeks before to the date on which the authorisation would expire without an extension granted under this section.

        (3)    The nominated Tribunal member must not extend the term of the authorisation under this section unless the Tribunal member is satisfied on reasonable grounds of the matters described in subsection 15GH(2).

        (4)    The nominated Tribunal member must not extend the term of any authorisation beyond one year from the date of the commencement of the authorisation.

15GQB  Who are nominated Tribunal members?

        (1)    A nominated Tribunal member is a member of the Administrative Appeals Tribunal in respect of whom a written nomination by the Minister is in force that permits the member to conduct reviews and to make decisions under section 15GQA.

        (2)    The Minister must not nominate a person unless the person:

             (a)    is a Deputy President or full-time senior member; or

             (b)    is enrolled as a legal practitioner of a federal court or of the Supreme Court of a State or Territory and has been enrolled for at least 5 years.

        (3)    A nominated Tribunal member has, in conducting a review or making a decision under section 15GQA, the same protection and immunity as a Justice of the High Court has in relation to a proceeding of that court.

These deal with controlled operations and the requirement for the AAT to authorise extensions. The government’s position is that they oppose these amendments and have provided that extensions for longer than 12 months are required to be authorised by the AAT. These amendments are superior to the position that is indicated by the government. These amendments ensure that there is sufficient oversight. One of the problems that has been identified in this bill—in some parts—is the degree of oversight that is required to ensure that all of the provisions have adequate safeguards within them. I seek the support of the government on these amendments, although it may fall on deaf ears.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

For the reasons I have set out, the government opposes these amendments.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

The Democrats support these amendments. May I add, for the record, that there is a difference between people not wanting to hear something and people who are genuinely deaf. That is why the expression ‘falling on deaf ears’ is occasionally offensive to those who are deaf or hearing impaired. Through you, Madam Chair, I make that point to Senator Ludwig; I make that point whenever I get a chance.

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

I do apologise. I think my age gets to me sometimes! I take Senator Stott Despoja’s point. It was not my intention to offend.

Question negatived.

I move opposition amendment (5) on sheet 5190:

(5)    Schedule 1, item 1, page 28 (lines 33 to 37), omit subsection 15HH(4).

This amendment relates to controlled operations and seeks to ensure that there is—following the Senate committee’s recommendation—greater accountability within this area. I will not speak to this at length. I spoke to this matter during my speech in the second reading debate. The numbers in this place are not going to support me on this amendment. Therefore, I will not take up more time than is needed to make that point. I think that the Senate committee got it right, but in this instance the government will not be moved that far.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

This seems to be an incredibly inoffensive amendment and is in line with the Senate committee’s recommendations. I am sure that in an ideal world we could have even greater reporting in other periods. This goes to the heart of issues of accountability and I do not see why the government cannot support this particular amendment. Certainly the Democrats will be supporting it.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

The government does not support opposition amendment (5) as it has the potential to have serious operational consequences should information be revealed that could endanger the success of the operation—which I think is quite obvious. The government does not think that Labor’s amendment, which places an absolute time constraint on controlled operations, is warranted. This could have serious operational ramifications, requiring a long-running operation into money laundering, for example, or terrorist financing, to be aborted at a sensitive stage.

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

Is the government saying that it does not report on any of these matters? As you know, the Australian Federal Police do report on a range of issues: warrants, telecommunications interceptions. They take on board and then report on a broad number of matters. Is the government indicating that no report is made at all in respect of matters which are ongoing in a broader sense and that the reporting every six months would be both onerous and difficult for ongoing investigations? Is that the point that is being made?

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

That is the correct point.

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

Was that point made in submissions by the Attorney-General’s Department to the Senate committee inquiry? The minister might be able to help with that or at least advise at the conclusion.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

The answer is no, but it was discussed subsequent to matters being ventilated at the committee.

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

I thank the minister for that. That does go to some of those matters that I spoke about earlier. These sorts of matters sometimes continue to be sorted out, whereas issues related to recommendations, although we see them as minor in some respects, have a clear answer. There is nothing stopping or preventing A-G’s from filing a post report or a post explanation if they have missed something, or even following that up in their advice to the committee so that it can be passed to members. I encourage A-G’s always to take that opportunity. If there are matters or omissions that they may want to add to their submission, they can always make a supplementary submission. It would, I suspect, always then be dealt with in the report to the legislation committee by the minister. But, as the parliament will know, it is not always the case that the government provides a report on the Senate committee recommendations. It is helpful for that to be done, but the government reserves its right to not always do that and to use the legislative process itself to provide a response. It does, of course, provide responses to the broader reports but not necessarily always in respect of legislative reports.

Question negatived.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

by leave—I move Democrat amendments (7) and (8) on sheet 5327:

(7)    Schedule 1, item 1, page 49 (lines 4 to 11), omit subsections 15JA(1) and (2), substitute:

        (1)    An authority for an authorised civilian of a kind covered by paragraph 15HZ(2)(h) remains in force until the end of the period specified in the authority in accordance with subparagraph 15HZ(2)(h)(iii), unless the authority is cancelled sooner under section 15JB.

        (2)    An authority for an authorised person (other than an authorised civilian of a kind covered by paragraph 15HZ(2)(h) expires at the end of the period of 3 months after the day on which it was given, unless cancelled earlier under section 15JB or, during the period, was extended by a nominated Tribunal member.

        (3)    In applying for an extension of a controlled operation authority, the principal law enforcement officer must provide a progress report in accordance with the time period for review under subsection (4) to the nominated Tribunal member that outlines:

             (a)    how effective the operation has been to date in gathering evidence in relation to the offence and targeted person specified in the original authority that may lead to prosecution of a person for a specified serious offence;

             (b)    whether any unlawful conduct authorised and/or carried out in the course of the controlled operation up until that point was outside the scope of the initial authority or went beyond what was necessary to conduct an effective controlled operation;

             (c)    whether any conduct up until that point by an authorised person in the controlled operation:

                   (i)    seriously endangered the health or safety of any person; or

                  (ii)    caused the death of, or serious injury to, any person; or

                 (iii)    involved the commission of a sexual offence against any person; or

                 (iv)    resulted in loss of, or serious damage to, property (other than illicit goods);

             (d)    the participation up until that point of any civilians in the controlled operation, particularly any authorised unlawful conduct engaged in by civilian participants, and whether the role played by any civilian participant could have been adequately performed by law enforcement officers.

        (4)    An extension granted under subsection (2), must only be granted if the certificate has been reviewed by a nominated Tribunal member during the last 2 weeks of the period of 3 months after the day on which the certificate was given under section 15J.

        (5)    An extension granted under subsection (2) can extend a controlled operation to a total duration for the operation of no longer than 6 months.

        (6)    The nominated Tribunal member must not decide that the certificate should be in force for 6 months unless he or she is reasonably satisfied:

             (a)    as to all the matters referred to in paragraphs 15GH (2)(a) to (h); and

             (b)    that the benefits of the operation to date, with respect to gathering evidence which may lead to prosecution of a person for a specified serious offence, substantially outweigh the degree and scope of the unlawful conduct required to obtain that benefit, particularly where civilian participants are involved, having regard to factors set out in subsection (3).

        (7)    The nominated Tribunal member must give written notice of his or her decision on the review to the principal law enforcement officer in charge of the controlled operation and the chief officer of the agency to which the certificate relates.

(8)   Schedule 1, item 1, page 49 (line 15), after “agency”, add “except for granting of extensions as required under 15JA”.

Democrat amendments (7) and (8) are in relation to the granting of extensions for controlled operations. We seek to amend schedule 1 of the bill to retain the requirement that extensions of controlled operations for three-month periods be approved by a member of the AAT and also require that a principal law enforcement officer applying for an extension of the controlled operation authority must provide a progress report to the AAT which addresses the effectiveness of the operation, whether unlawful conduct has exceeded the scope of the initial authority or has endangered the public and whether civilian involvement is still necessary. Essentially we are looking to strengthen the monitoring role of the AAT. I referred to this, obviously, in my speech in the second reading debate. Amendment (8), dealing with the extension limits, seeks to limit the ability of the chief officer of an agency to vary or extend the operation in line with the expanded role of the AAT. I commend the amendments to the chamber.

Question negatived.

Through you, Chair, to the minister, I am going to say something to goad you, Senator Johnston, just to get something on record.

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

I have tried.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

You have tried, yes. I have to say, Senator Ludwig and Senator Johnston, that you did have a bit of a chest-beating exercise before this debate adjourned earlier today. I move Democrat amendment (9) on sheet 5327:

(9)    Schedule 1, item 1, page 69 (line 14) to page 70 (line 5), omit subsections 15KI(1) to 15KI(3), substitute:

        (1)    A court or tribunal may grant a witness protection certificate provided:

             (a)    the court or tribunal has undertaken an independent assessment of the asserted need for witness anonymity and satisfied itself that the need is genuine and well-founded in the interests of:

                   (i)    national security; or

                  (ii)    the personal safety of the witness;

             (b)    all other less restrictive protective measures have been considered and found to be inadequate in the circumstances;

             (c)    that a court or tribunal may, only in exceptional circumstances, convict (or enter a judgement against a party) based either solely or to a decisive extent on the testimony of any anonymous witness.

Democrat amendment (9) is in relation to witness protection certificates. We seek to remove the ability of the chief officer to grant a witness protection certificate and to replace that with a court or tribunal. Again referring to my remarks in the second reading debate, obviously we see this as being a stronger mechanism and do not believe that there is a sufficient argument before us to support the changes proposed in the bill. I hope that the government and the Labor Party will consider the amendment before us.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

The government does not support Democrat amendment (9) and believes that sufficient protections are provided by proposed section 15KQ to ensure that an operative’s identity can be disclosed when appropriate.

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

I understand the principle that you are seeking, Senator Stott Despoja, but I think in this instance the position being articulated by the government appears to provide sufficient protection. It was not a matter that was raised in any broad way before the Senate committee. As I read it, I can see the point that you make, but I think it is probably more than what is necessary in this instance. It appears that the current system does not and has not thrown up any significant issues that need addressing. Therefore, the Labor Party will not support this. But, having looked at them, they are certainly matters that I will keep in mind.

Question negatived.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

The Greens oppose schedule 1 in the following terms:

(1)    Schedule 1, page 3 (line 2) to page 85 (line 6), TO BE OPPOSED.

The purpose of this amendment is to oppose the part of the legislation that deals with controlled operations. I spoke about this matter to a limited extent in my second reading debate speech. The Greens understand that in some circumstances the police must work undercover, and this often involves collaboration with a whole range of people involved in criminal activity. It is clear, however, that such activity has a great risk of contributing to corruption and abuse. For those reasons, and to ensure public confidence, it is very important that such undercover work or controlled operations are tightly regulated and that the police involved are accountable. We are concerned that the section of this bill that deals with controlled operations waters down and removes some of the important mechanisms of accountability that exist for such controlled operations. That is why we are moving the Australian Greens amendment.

I have a couple of questions for the minister about controlled operations, in particular the use of foreign intelligence officers in controlled operations and the immunities that are provided for foreign intelligence officers in these operations. Can the minister explain what the purpose is of foreign intelligence officers being able to use assumed identities as part of these controlled operations and whether or not foreign intelligence officers and their agencies would therefore be participating in controlled operations with the Australian Federal Police? Is the minister able to provide any more details about which agencies and which countries? In particular, is it intended that these powers be put in place in order to prepare for APEC, which will occur in Sydney in September?

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I think that is probably a legitimate question. Where we are working in cooperation with a person from another country on a controlled operation inside Australia, it is arguable that they would be breaking the law if they were to be carrying out acts with an Australian Federal Police officer who is covered by the legislation. Given that there may be a cross-border duality of criminality and that the evidence is gathered onshore in Australia, we must incorporate that person into the regime so that that person, who is acting in his country’s best interest, is covered.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

Your answer has made it a bit more unclear to me. From your answer, I am not sure now whether the foreign intelligence officer will be involved in undercover operations in Australia or overseas. I thought what we were talking about was the foreign intelligence officer’s involvement in breaking Australian law in Australia, but your answer seemed to suggest that they will be operating in their country and AFP officers can be breaking the law here. Can the minister clarify that? I thought we were talking about foreign intelligence officers breaking Australian law in Australia. Are you talking about them only being involved in their home country?

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I am talking about them working in Australia in partnership with Australian law enforcement agencies, and our agents—Australian Federal Police officers and Australian law enforcement officers—working in another country. There is a reciprocal capacity requiring protection for all officers in the pursuit of the particular criminality—the subject of the operation.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

Are there specific countries or agencies that this is intended to relate to or is it for everyone? Is this the sort of power that you could imagine being used in APEC, for example? I know that legislation in New South Wales has gone through which gives New Zealand Police the authority to operate as Australian police for the purposes of APEC. Is that part of what this is focusing on? I am sure it is broader than just APEC, but my question is whether it relates to APEC.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

The answer to the first question is no. There is no country that is the subject of, or under consideration in, the enactment. The second question is one that I would decline to answer because it is purely speculative as to future operations. They can take very diverse forms and I would be remiss in seeking to limit the focus of future operations on any particular event, time or country.

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

This bill was drafted in 2006, introduced at that time and subsequently dealt with. I am not sure if APEC was in the minds of the drafters of this bill. Perhaps it would be worth while for the minister to answer that point, because, as I understand it, the Greens amendment seeks to take out the whole of schedule 1—that is, to take out effectively what has been around for some years now as a power that is available to the Australian Federal Police to work with states. It relates to a controlled operation, which is defined as a:

… covert or overt activity which would normally be unlawful, but for which immunity is provided for the purposes of securing evidence of serious criminal offences.

It came—I will add a bit of history here—from model legislation which was published in 2003 in the report Cross-border investigative powers for law enforcement. The intent of the legislation is to harmonise as closely as possible the controlled operations regime across Australia. The removal of schedule 1 would leave a serious hole in the ability of the Commonwealth to work with the states on serious crime. If that is the intent of the Greens then not only can I not agree with the position they have put but I also criticise them, in taking this opportunity to remove schedule 1, for not being serious about fighting crime—cross-border crime particularly—through the use of powers that have been available for some time. If there are elements of schedule 1 that the Greens disagree with then this is the appropriate place to debate them, but to use this opportunity to say that you do not want controlled operations powers that have been around for some time misses the point of allowing our law enforcement officers sufficient powers to conduct their investigations and to fight crime.

The bill covers the spectrum of controlled operations and defines the method of authorisation required for each. There is a regime in place that deals with how the controlled operations should be undertaken and dealt with. I will not go into the detail of that, but I think it is important to at least highlight the gulf between Labor and the Greens on this matter. Notwithstanding that the power has been around for some time, that it has been brought forward to harmonise with the states, that it came from a report back in November 2003 and that it is ensuring that the Commonwealth can deal with cross-border crime in an effective way with the relevant controls and safeguards in place, the Greens are taking the opportunity of seeking to remove that power completely, which would leave the Commonwealth unable to deal with controlled operations on a cross-border basis. On that basis alone, I find the Greens’ position extreme and I am not able to agree with it.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

As I outlined in my speech in the second reading debate and my comments in relation to this amendment, our concern is that this bill removes the accountability mechanisms that are currently in place for controlled operations and undercover operations. We have all been talking about that. We are concerned that undercover operations are precisely the kinds of operations for which we need to have significant accountability mechanisms in place. That is the intention of the Greens amendment.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

First I want to acknowledge that I understand what the Greens are trying to achieve. The Democrats have sympathy for that because we agree that the legislation before us is not sufficiently full of the various appropriate accountability mechanisms or safeguards. Looking at the debates we have had and the amendments that have been moved in relation to schedule 1—from time limits on controlled operations right through to who can or cannot issue WPCs—I think that the effect of this is to return to the status quo.

We understand that the said aim of the legislation is to do those things to which Senator Ludwig referred, particularly harmonise laws and ensure Commonwealth-state cooperation and the ability to work together. But there are some instances where you need to say that the government, in drafting legislation, needs to go back to the drawing board. In the last half an hour or so, there have been a series of amendments, some that have come from the crossbenches, that have gone further than the Senate committee recommendations. There were also Senate committee recommendations that were totally worthy and appropriate and should have been adopted. I acknowledge that the minister and the government have adopted, in a limited form, some of those recommendations, but I think it is entirely legitimate for Senator Nettle to move an amendment to oppose the schedule in full and, as a result, seek to return us to the current circumstance and ask the government to come up with new legislation or a new schedule that incorporates some of the safeguards that the various submitters to the Senate inquiry and others have called for. It is quite concerning that it is considered extreme. It is certainly blunt but it is not unwarranted. So, based on the fact that my amendments on behalf of the Democrats have not been supported in this circumstance—nor, indeed, have the opposition’s amendments, which quite appropriately put forward the bipartisan view of the Senate inquiry recommendations—I have no qualms about supporting this amendment in relation to schedule 1.

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

I am sorry, Senator Stott Despoja, that I have raised your ire in this respect. The point I am making is that this legislation was the subject of a report dating back to November 2003; the direction that the government is taking is not new in that sense. Having read that cross-border investigative report some time ago now, and noting that the bill was introduced back in 2006, in this regard schedule 1 was not unexpected. In providing an update of controlled operations and harmonisation across the states, to ensure that the Commonwealth has the ability to work with the states, we have moved on since the time when the states and the Commonwealth, at least for law enforcement purposes, did not adopt a cooperative approach. But they do now, and they have done so for some time, for a range of very good reasons. By removing this schedule, we would be going back to a position where we might inadvertently hamper, hinder, obstruct or make things difficult. I am sure the government could outline the purposes of ensuring that there is the ability to have, in this instance, effective cross-border investigative powers. That is the point I was making.

Having followed the debate since 2003, it is a quite different point to make that you have complaints about oversight, additional oversight or something which is, in my view, legitimate. It is not for me to judge, but I am referring to matters that you could quite rightly point to and say that they require strengthening. It is quite another matter to say that the Commonwealth should be denied the ability to move towards harmonisation to ensure that the impediments to cross-border investigative operations are removed.

When you juxtapose those positions, you see that the Labor Party entered the debate constructively, as it did during the committee process. I do not like saying this, but the government did respond to the committee recommendations, and it did respond positively, to the extent that it picked up most of the recommendations. I am not always in a position to be able to say that in this place—that the government has picked up most of the recommendations. In fact, in this case it has picked up all bar recommendation 6. There were a range of recommendations dealing with oversight issues and the like. Of course, it only picked up some in part and it changed some others. However, my summation is that it has done better than 50 per cent, and that has been quite a rarity during the last 12 months or so that the government has been in control of the Senate. I do not like to give credit where credit is due when it involves the government, but I will do so in this case, because it has risen to the challenge and provided a response. We have now been able to work through the legislation, and it is better than many other pieces of legislation that we have looked at. I know that is a rather long-winded explanation, but the matter did require one.

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

The question is that schedule 1, as amended, stand as printed.

Question agreed to.

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

I move opposition amendment (7) on sheet 5190:

(7)    Schedule 2, item 8, page 88 (lines 4 to 16), omit the definition of relevant offence, substitute:

relevant offence means:

             (a)    an offence under Division 72 of the Criminal Code Act 1995; or

             (b)    an offence under Part 5 of the Criminal Code Act 1995; or

             (c)    an offence involving or resulting in the death of a person; or

             (d)    an offence against the person, where the maximum penalty for the offence is imprisonment for life.

This is one area where we do fall out with the government. In its response, the government indicated that it did not accept recommendation 6. The Senate committee recommended that the federal government limit the offences in relation to which delayed notification search warrants may be issued to offences involving terrorism or organised crime, or death or serious injury with a maximum penalty of life imprisonment. In that instance, the government has provided a response, and the opposition thank the government for that. It said that delayed notification search warrant schemes will only apply to offences which justify the use of such warrants. These include specific listed offences or offences which carry a penalty of 10 years imprisonment or more. The government claims that, if the recommendation were accepted, a range of serious offences may not be subject to the scheme, including child pornography, sexual servitude and child sex tourism offences. If there are a range of serious offences that it wishes to include, while excluding the less serious offences, it would be incumbent upon it to put that position, but it has not done so.

The rationale for the Senate committee’s position, and Labor’s position, was to be in accord with the states’ position as far as possible. Our understanding is that terrorism or organised crime, or death or serious injury, are matters which can fall within the state jurisdiction and that, if we are looking at cross-border harmonisation of investigative powers and the use of delayed notification warrants, the outcomes should be similar. If there is a complaint that some of those offences that should be dealt with by the states are not being dealt with, the minister has the ability to put those matters on the agenda of the police ministers’ council, to pursue them more broadly, if it has not already done so, and accept the outcome. The other thing it could do is provide a more detailed explanation. The complaint we make is that it seems to be too broadly drafted. That is the position that we have argued, both in the Senate committee and here. If the position were to be argued differently, it would have been helpful if the Attorney-General’s Department, in providing advice to the Senate committee, had pointed that out. If they did so, I will withdraw those remarks.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I think I have already dealt extensively with why the government did not accept the committee’s recommendations on this point, and those reasons apply equally to this amendment. Outside the terrorism context, delayed notification search warrants are needed to investigate, obviously, drug trafficking, child sex tourism and sex slavery networks. They are required to bring those engaged in such activities to account and to enforce the law against them. Also, in circumstances that I have set out with respect to outlaw motorcycle gangs and organised crime, using delayed notification search warrants would mean that those networks could not be tipped off through the provision of a document that would indicate what the enforcement officers were seeking and which would then be challengeable in a jurisdiction such that further evidence would have to be given in support or rebuttal of an injunctive proceeding.

By way of assistance to the opposition, I have provided a short table setting out the government amendments relevant to the Senate committee’s recommendations. I can further provide references to the recommendations with a view to the opposition amendments, should you so require.

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

We will not move it, then, on the basis of that.

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

Are you withdrawing amendment (7), Senator Ludwig?

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

Yes.

The Temporary Chairman:

Opposition amendment (7) has been withdrawn. We now move to Democrats amendment (10) on sheet 5327.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

The Australian Democrats oppose schedule 2 in the following terms:

(10) Schedule 2, page 86 (line 2) to page 116 (line 13), TO BE OPPOSED.

This amendment is identical to Greens’ amendment (2) on sheet 5211. It deals with our objections to the delayed notification search warrants. I thought that Senator Ludwig’s points were well made in terms of restricting the offences to which you would have delayed notification search warrants—

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

I realised I didn’t want to get into the argument!

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

so I am surprised and disappointed by the withdrawal of that amendment, having supported the recommendations of the Senate committee, certainly as a next best step or an ameliorating provision, if you like, in relation to this legislation.

I have put on record already our concerns with this provision. So what this amendment seeks to do is essentially to oppose broadly the provisions that relate to the delayed notification search warrants. The Democrats believe that there is a strong argument for getting rid of this provision, and we oppose the provision and hope that that will be supported.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

I spoke extensively on this matter in my speech on the second reading. This amendment, as Senator Stott Despoja outlined, is about removing the power of the Australian Federal Police to carry out secret searches in people’s homes, to confiscate their equipment, to plant listening devices and to access their computer equipment, all without those people ever knowing. As I explained in my speech, and as Senator Johnston has heard me explain before, our concern is that, if evidence is gathered as part of that covert search which is subsequently used against an individual in court, they will not be able to contest that evidence because they will not know that the search was carried out.

As I explained in my speech, currently the way in which warrants are issued is that you know someone is searching your home or your property and you are able to be there to check that they carry out the search properly. You get receipts for things that they take, and you are also able to have a lawyer present. What that means is that you are able to check to see that the search is carried out lawfully and properly. If the search is carried out covertly and you never know about it then, if evidence is gathered and brought into a court and used against you, you cannot contest the accuracy of the collection of that evidence or whether that evidence was collected legally, because you were not able to observe or be aware of the search or receive receipts for documents taken because you would not know that the search had been carried out.

As I said in my speech, the government’s rationale is that this is about evidence. The position I have put forward is that, given the delay in notification of the search warrant, it is inevitable that it will be used for intelligence. But, if I take the government’s rationale that it is for evidence, you would not be able to contest that evidence in a court if you were not aware of the way in which the search was carried out because you would not have been notified, you would not have had anyone present, you would not have had a lawyer able to observe the search and you would not have been able to access receipts for the process.

The amendment is about ensuring that there is not an abuse of the power to carry out the search. I am not saying that there will be an abuse; that is not what I am saying. I am just saying that this mechanism prevents you from being able to ensure that such a search is carried out properly. If evidence is gathered and is used against you in a court, you have the right to be able to ensure that that evidence was legally and properly collected. But this takes away your right to be able to ensure that evidence used against you in a court is appropriately collected. That is the concern that the Greens have in relation to this, and that is why we do not support giving these new ‘sneak and peek’ powers to the Australian Federal Police.

I dealt with the issue of the time delay in my speech on the second reading. It is an extraordinary length of time. If it is for evidence gathering in particular, I cannot see why you need six months extended to 12 months and then 18 months. And, with the approval of the minister, the extensions can continue. That might make sense if it were for intelligence gathering, but it is not. The government’s rationale is that it is for evidence gathering. Presumably, you are gathering evidence to use in the courts, so why such long delays?

It is interesting to compare it to the USA PATRIOT Act. In that act, at section 213, it says that such warrants are only able to be delayed for 90 days. What is being proposed here as the initial period of time before there is any requirement for notification is double what is in the USA PATRIOT Act. Then this legislation allows for further extensions to make it 12 months or 18 months and then, with the approval of the minister, to extend it beyond that. So it is quite extraordinary, even when compared with overseas examples such as the USA PATRIOT Act.

Where you give powers to the Federal Police to carry out a search of somebody’s home, there needs to be that accountability. Our concern is that this model for covert search warrants, the ‘sneak and peek’ powers for the AFP, does not allow you to have the oversight that you need, particularly if evidence is being gathered that is being used against you in your court case, because you cannot contest it. That is the concern that the Greens have, and that is why we strongly support this amendment. We are concerned, and I outlined this in my speech in the second reading debate, that the process outlined in the bill suggests that an 18-month delay in notifying anybody can be easily obtained. This goes to the matter of there not being guidelines for Administrative Appeals Tribunal members or judges on making a determination about when there are extraordinary circumstances and the delay in notification should be extended even further. That allows 18 months to become standard. Obviously there is an additional approval from the minister for a period beyond 18 months, so the length of time indicates to us that it is of concern. As I have said, that is far longer than is allowed in the United States, for example.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I see that Senator Nettle does have some grasp of the way this might work. But I need to explain to her that, for evidence to be admissible as a primary question, every judicial officer in a proceeding can consider admissibility, so that evidence can be challenged, notwithstanding the fact that a late notification warrant gave rise to it. What we are saying is that providing notification to someone who is in certain specified circumstances such as I have already set out to you is counterproductive. In fact, it threatens the success of the operation to set out in warrant form the basis of the warrant and to provide advice to the person who is the subject of the warrant. That does not preclude the person from subsequently, upon the charges, challenging the evidence derived from the warrant. They would have that right with notification. They still have the right at the proceedings—which would hopefully and likely flow from the evidence gathered from the execution of the warrant.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

I do understand that you are able to contest the evidence. My concern is that if you are not there, present at and aware of the search, then you do not have a basis on which to challenge the admissibility of the evidence. I accept that you are able to challenge the admissibility of the evidence in court, but my concern is that if you did not know the search was carried out—you were not aware and you did not know how the search was carried out—then that would make it difficult for you to determine a basis on which to challenge the admissibility of the evidence and the way in which the search was conducted. So I accept that you are able to challenge it—being able to challenge something is good; it is appropriate and you should be able to do it. But if you are not aware of the search and how it was carried out then the basis on which you challenge it is removed—your opportunity to do that is removed.

The minister has, both here and in other fora, pointed to the example of not wanting to tip somebody off that a search is being carried out. I suppose it is about recognising that, in practice, the cops rock up to your house with the warrant and go in. It is not like they say, ‘Hey, we’re going to come and search your house in two weeks.’ You are not told: ‘Hey, clear up your place. The cops are coming around in two weeks. They’ll be searching, so you’d better clear out all the evidence.’ It just does not work like that. The cops rock up to your house with the warrant, they show it to you and in they go. I accept that the minister is trying to make a point, but I just do not think it aligns with the reality of the way in which the searches occur.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

Without seeking to create any defences, in terms of evidence obtained through a late notification warrant, the warrant would have to be obtained according to the law. That would obviously be a starting point if the admissibility of the evidence was to be challenged. It would be a starting point whether or not a person was standing there observing the execution of the warrant. With the greatest respect, Senator Nettle, all I am saying is that I think you are seeking to jump at shadows because you do not like the authoritative nature of the powers that police have.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

That is a bit provocative.

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

Did that raise your ire?

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

Yes, it did. I would like to place on record here that it is possible for people to support the work of investigative and police agencies—

Julian McGauran (Victoria, National Party) Share this | Link to this | Hansard source

And covert operations.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

My gosh, Senator McGauran is here! It is possible to support the work of those agencies and to support the granting of powers—and sometimes additional and extraordinary powers, particularly when dealing with burgeoning and new offences as we find in this new era of terrorism. But, by the same token, we are entitled to have a debate—that perennial debate, regardless of the era to which you belong—about the balance between human rights, personal liberty and freedom and the public interest and, of course, national security. I notice that Senator Nettle invoked The Castle earlier—so it is about the ‘vibe’ of the Constitution too.

Seriously, though, as part of this debate—through you, Madam Temporary Chairman Moore, to the minister—I am not doubting a natural order here or questioning instinctively the powers of the police per se, but I am looking at this issue. We are dealing not just with the specifics of the collection of evidence, whether or not you can challenge it and test its admissibility, but also with broadening warrants in relation to the agencies and the offences to which they apply. We are dealing with a broad range of federal agencies that are scooped up as part of these new proposals. We are dealing with, arguably, the potential for indefinite warrants—when you look at the renewal provisions of these warrants. So we are dealing with broad-ranging powers in the legislation before us. Hence the amendment before us, the one in my name—and I note Senator Nettle’s amendment—that opposes this particular section in relation to delayed notification search warrants.

I acknowledge that the minister has put forward an example or an argument as to why this would be beneficial, but I want to clarify whether the government is in a position to put before the chamber anecdotal evidence or quantify the circumstances in which the current powers have been insufficient so that this change is necessary. In my second reading debate remarks, I made the point that I did not feel the explanatory memorandum justified these new, broad-ranging powers. Have the existing powers in relation to the searching or monitoring of individuals come up short? Is this an argument that the government can sustain with examples, anecdotes or information from the agencies?

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

There are circumstances in which police involved in operations, not having obtained a warrant, see evidence but cannot get it because they need to get a warrant. To advise the subject of a warrant of the nature of the warrant and specify what the warrant is for will clearly, in a network type situation, lead to the removal of the evidence. I have given the example of clandestine drug laboratories. When you are seeking to close one laboratory and you have suspicions about others, and the headquarters of the operation contains information about the location of those other laboratories, then the disclosure of the information in the warrant and having the owner of the headquarters present will mean that the evidence will be removed from the other clandestine laboratories; they will be closed in the blink of an eye. There is an anecdotal example.

The government is very conscious of the need for balance. Can I take you through the balance again. For an officer to get a delayed notification search warrant, he must go to the chief officer—defined as ‘the Commissioner or his delegate’—and spell out on reasonable grounds his suspicions that serious offences are being carried out in circumstances that would give rise to a late notification warrant—that is, that this type of warrant would suit that particular operation. Serious offences are defined as offences carrying a jail sentence of 10 years or more. The chief officer—that is, the Commissioner—has to consider all of that and then give his permission. Then that constable has to go before an eligible issuing officer—a judge or a member of the Administrative Appeals Tribunal—and fulfil nine legal requirements. He has to make a written application; specify the name of the applicant; specify the name of the constable who, unless he or she inserts the name of another constable in the warrant, is to be responsible for executing the warrant; provide details or attach a copy of the authorisation given to him by the chief officer; specify the address, location or other description of the premises and any other adjoining premises; specify the proposed duration of the warrant; provide a description of the kinds of things proposed to be searched or seized, copied, photographed, recorded, operated, printed, tested or sampled; provide a statement on whether things are to be placed in substitution for seized things—in other words, in a controlled operation; and support all of that with an affidavit. Then you get the warrant.

And then we have the follow-up over the six- and 12-month regime with respect to the Ombudsman reviewing those things if the operation goes on, and the minister tables the report. I am having difficulty imparting to you, as lawful citizens, the level of criminality that we are seeking to deal with here. This is the great unknown; people do not understand the dynamic nature of serious organised crime, serious organised drug trafficking and serious organised terrorism financing. These are the things that, in the face of those checks and balances, we seek to arrest. With respect, Senator Stott Despoja, to want to throw those out with no substitution, in the face of what I have just said, strikes me as being seriously unable to come to terms with the level of criminality we are dealing with here.

Question put:

That schedule 2, as amended, stand as printed.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

I move Democrat amendment (11) on sheet 5327:

(11) Schedule 3, item 4, page 117 (line 21), after “section 22,” add “must be a sworn federal, state or territory policy officer and”.

This amendment relates to the executing officer. The intent of the amendment is to confine that to sworn federal, state or territory police officers.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I addressed these issues in my response setting out the government’s amendments.

Question negatived.

The government opposes item 27 in schedule 3 in the following terms:

(17)  Schedule 3, item 27, page 131 (lines 17 to 20), TO BE OPPOSED.

The government is opposing this item because of recommendation 10, with respect to the examination of persons without legal representation. That has been accepted substantially. Accordingly, we are seeking to remove the item from the bill.

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

I thank the government.

Michael Forshaw (NSW, Australian Labor Party) Share this | Link to this | Hansard source

The question is that item 27 in schedule 3 stand as printed.

Question negatived.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

The government opposes item 31 in schedule 3 in the following terms:

(18)  Schedule 3, item 31, page 131 (line 27) to page 132 (line 12), TO BE OPPOSED.

The government wishes to withdraw item 31 in line with the Senate committee’s recommendation. This is a similar matter to item 27.

The Temporary Chairman:

The question is that item 31 in schedule 3 stand as printed.

Question negatived.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

I move Democrat amendment (12) on sheet 5327:

(12)  Schedule 3, item 32, page 132 (lines 15 to 23), omit subsection (1), substitute:

        (1)    An examiner may summon a person to provide evidence to an examination, and the form of that evidence shall be determined by the person including:

             (a)    appearing before the examiner at an examination to give evidence;

             (b)    producing such documents or other things (if any) as are referred to in the summons;

             (c)    giving evidence by tendering written statements.

The intent of this amendment is to amend schedule 3, item 32, to allow a person summoned under subsection (1) to have a choice on whether to give evidence by tendering a written statement or by appearing before an examiner for oral examination and/or producing documents et cetera.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

The government rejects this amendment. Examiners have been given specific powers in order to combat serious and organised crime. It is essential that they retain control over the investigations that they conduct. With respect to matters of credibility and credit, it is obviously important that the witness to be examined attend in person so that those matters can be adjudicated.

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

I am curious about where you got that from, Senator Stott Despoja. The government has outlined the normal process. Usually an examiner requires someone to attend and, on occasion, to produce documents that are associated with the original summons so that they can examine them about those documents and put questions to them. That is the purpose of an examiner. I am curious about where you got the additional, singular view about giving evidence by tendering written statements. That, in fact, might slow the process down and hamper an investigation. Obviously, if there are follow-ups required on the written statement we could end up with a lengthy period of examination. It might be a lot easier to deal with the situation by producing the person and the documents.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

I appreciate the question from Senator Ludwig. I will need to check that. I think that might have been in the Law Council submission, but I am not sure. I can get back to the committee on that. In the meantime, I will keep pursuing the other amendments in the interests of time.

Question negatived.

by leave—The Democrats oppose schedule 3 in the following terms:

(13)  Schedule 3, item 39, page 133 (line 28) to page 134 (line 1), TO BE OPPOSED.

(14)  Schedule 3, item 42, page 134 (lines 8 to 13), TO BE OPPOSED.

(15)  Schedule 3, item 45, page 134 (lines19 to 24), TO BE OPPOSED.

These amendments, like the last one to which I referred, Senator Ludwig, are pretty much sourced directly from the Law Council submission. They deal with the determination of incrimination, the use of incriminating evidence and reversal of the evidential burden. I outlined in my comments in the second reading debate the concerns that the Australian Democrats had with the effect of the bill in seeking to abrogate the privilege against self-incrimination by requiring people to provide a written statement potentially containing self-incriminating information. We have expressed, on a number of occasions, concerns about provisions such as that in law.

So amendment No. 13 would remove the ability for evidence which a participant has indicated may be self-incriminating to be subsequently used in evidence against that witness under section 35 of the Australian Crime Commission Act. Amendment No. 14, dealing with the use of incriminating evidence, would delete the note which reverses the evidential burden of proving that evidence is not false in a material particular. I am happy to commend those to the Senate. Amendment 15 is the one to which I just referred. ‘Removing the ability for evidence for which a participant has indicated may be self-incriminating to be subsequently used in evidence against that witness under section 35’—I think that was No. 14, and No. 15 was: ‘Amend schedule 3 to delete the note which reverses the evidential burden of proving that evidence is not false in a material particular.’

Again, they essentially go to the heart of our concerns, which are the changes involving self-incrimination and also the fact that we are concerned that we are doing the legwork for the ACC. I hope that little messy explanation goes to the heart of our amendments and I commend them to the chamber.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

In response to the self-incrimination aspect, in practice the requirement of a witness claiming protection against self-incrimination before each answer creates a disruption in the interrogation process in this framework. In addition, the process is often confusing for unrepresented witnesses, who regularly need a lengthy explanation of how the process works. Item 39 allows examiners to expand the privilege against self-incrimination to all evidence given in relation to a question or a class of questions, a document or a class of documents or a thing or a class of things. As a result of the examiner’s direction all evidence given in relation to a question or class of questions, documents or thing or class of things or documents specified in the direction will be subject to a claim of privilege in accordance with section 30(4)(c) of the ACC Act and the immunity provision in subsection 30(5) will apply.

In this framework the person is given the caution with respect to self-incrimination but must answer the questions. In other words, this amendment will simplify proceedings for witnesses and reduce the duration of examinations as the interruption caused by witnesses making a claim of privilege before answering each question or producing each document or thing will be alleviated at the examiner’s discretion. This aligns with the Evidence Act 1995 by requiring the examiner to caution a witness about self-incrimination before beginning questioning, and the amendment will reduce the potential prosecution of many witnesses who follow.

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

Perhaps you could also go on to say whether or not they have a use or a derivative use immunity in respect of the matters that they provide.

Michael Forshaw (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I will put the question that items 39, 42 and 45 on schedule 3 stand as printed.

Question agreed to.

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

The point you were making was oblique to the real position. The position is to facilitate the examination, and I asked for confirmation that there was use immunity. There is and there always has been use immunity, and it certainly has not been abrogated by these amendments. It is certainly a matter that would have come to the committee’s attention had it been one of the issues being pursued—but it certainly was not.

The Temporary Chairman:

It would assist if senators were to seek the call through the chair and stand when they wish to do so. It helps the running of the chamber.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

I move the Australian Greens amendment (3) on sheet 5211:

(3)    Schedule 3, page 154 (after line 5), at the end of the Schedule, add:

Part 4—Amendments relating to period of arrest

Crimes Act 1914

23  Subsection 23B(1)(definition of investigation period)

Omit “or 23CA, as the case requires”.

24  Subsection 23C(1)

Omit “(other than a terrorism offence)”.

Note:   The heading to section 23C is altered by omitting “if arrested for non-terrorism offence”.

25  Subsection 23C(6)

Repeal the subsection, substitute:

        (6)    If the person has been arrested more than once within any period of 48 hours, the investigation period for each arrest other than the first is reduced by the amount of any earlier investigation period or periods under this section, as occurred within that 48 hours.

26  Section 23CA

Repeal the section.

27  Section 23CB

Repeal the section.

28  Subsection 23D(1)

Omit “a serious offence (other than a terrorism offence)”, substitute “serious terrorism and non-terrorism offences”.

Note:   The heading to section 23D is altered by omitting “if arrested for non-terrorism offence”.

29  Section 23DA

Repeal the section.

30  Subsection 23E(1)

Omit “or 23DA”.

31  Subsection 23E(3)

Omit “or 23DA(5)(as the case requires)”.

32  Paragraph 23XGD(2)(h)

Omit “or 23CA(8)”.

This amendment goes to the matter of the ability of the Australian Federal Police to hold people without charge. This relates to the case of Dr Mohamed Haneef, who we all know was held for 12 days without charge. This was the first time that we saw these terrorism laws exercised in Australia—the ability to hold somebody without charge—and it is worth us reviewing how those laws came into effect.

At the time that the legislation was put before the parliament, there was a Senate inquiry into the matter—in 2004—and there were also a number of questions that were asked in the Senate chamber in relation to this matter. The government was well aware at the time of what it was asking for: an extraordinary power to be able to hold people without charge. At that time, understandably, there were a number of questions from myself, from other members of parliament and also from public interest groups, who had a concern about how such powers may be exercised. I want to remind the Senate what we were told at the time about how such powers would be exercised. I will do so by quoting the Hansard of the Senate inquiry into this matter and, in particular, the comment by Mr Geoff McDonald, who at the time was the assistant secretary of the criminal law branch of the Attorney General’s Department. He told the Senate inquiry:

I would be extraordinarily surprised if the dead time—

and, perhaps to explain: the ‘dead time’ is the period of time for which somebody can be held whilst questioning is not occurring. He said:

I would be extraordinarily surprised if the dead time, for example, in relation to the time zones, would get anything like the sorts of time periods that were being suggested by Professor Williams.

That is referring to Professor George Williams, who was suggesting 24 hours. The Attorney-General’s Department said they would be extraordinarily surprised if somebody would be held for 24 hours in the dead time. And he said:

I have spoken to the Victorians about cases in Victoria concerning reasonable time and what the court has considered to be reasonable time, and the court has considered periods like 16 hours to be reasonable.

This was in response to evidence given to the committee by Professor George Williams from the University of New South Wales who was concerned about giving the extraordinary power to the Australian Federal Police to hold people without charge. He mentioned that it could mean that people could be held for 24 hours. The Attorney-General’s Department indicated that they would be extraordinarily surprised if that were the case. There was a debate around the issue of what the court would consider to be a reasonable period of time to hold somebody before they were charged. The examples that were pointed to were determinations that the Victorian courts had made about what would be a reasonable period of time—as I just quoted to you: 16 hours.

Mr Geoff McDonald from the Attorney-General’s Department went on to say:

In fact, I actually expect with this legislation that in reality the periods of the extensions will not be up around the full 24-hour limit. I expect that they will be within that period and that in fact the dead time will in many cases still come within that limit.

So there we have an indication from the Attorney-General’s Department, at the time that the legislation was being debated, that we are talking about the realm of 24 hours. We all accept that the legislation allows people to be held indefinitely without charge, as long as they get approval from the court along the way, but the capacity is in the legislation to do that and this was pointed to by a number of individuals, including the Greens. At the time that the legislation was being debated by the parliament, the proposal was that 24 hours was the sort of time limit we were looking at.

The very first time that these powers were used by the Australian Federal Police, in the case of Dr Haneef, he was held for 12 days—that is, over 200 hours. So the parliament was told: ‘Give us these extraordinary powers.’ The parliament was told that 16 hours, maybe 24 hours, was the kind of time frame, the realm, that was considered to be appropriate or acceptable when the government was saying, ‘Give us the power so that we can do this,’ and the very first time they were used Dr Haneef was held without charge for over 200 hours—12 days.

I think there are a number of matters in this. Of course, there is the fundamental issue about whether or not people should be held without charge and whether people’s liberties should be taken away, unless it is decided so by the court. We also have the matter of what the government told the parliament at the time that they were asking for these extraordinary powers, which, as I have indicated, was 16 hours, maybe 24 hours or less than 24 hours. I think there are lessons to be learnt from what we have seen in the case of Dr Haneef and the period of time for which he was held. One lesson is that the government cannot be trusted with these extraordinary powers.

I am moving this motion today, on behalf of the Australian Greens, to return us to the situation that we used to have: the situation that has been acceptable in this country all the way through until the decision to put in this law occurred in 2004. Just to outline that situation: it allows people to be held for four hours and then for an application to be made for an extension of that period of time. Again, that is where the debate was: the court had considered it reasonable to extend the time to 16 hours. So we are talking about maybe 20 hours or even 24 hours for which people are able to be held. That is actually what representatives of the Attorney-General’s Department were telling us would occur with the extraordinary powers that were given in 2004. The realm we were talking about was 24 hours and, the first time that we saw the powers exercised, it was for over 200 hours. This amendment returns us to that situation.

That does not prevent investigations continuing. We have seen that in the case of Dr Haneef. Commissioner Keelty and others have talked about ongoing investigations continuing. Charging somebody does not prevent investigations continuing. In fact, it allows the proper course of the court to operate so that there can be bail applications, cases can be put forward and the magistrate can determine the decision in relation to whether or not the granting of bail should occur. This amendment from the Australian Greens seeks to offer the parliament the opportunity to learn from the case of Dr Haneef, where we saw these powers exercised for the first time, and he was held for over 200 hours when the parliament had been told that what would be considered reasonable when this power was used was in the realm of 24 hours. That is what we are saying: given that is what we were told at the time and that that is what was put forward as acceptable and appropriate, let us have that in our law rather than this indefinite detention—the capacity to hold people indefinitely without being charged, as long as the court agrees all the way down the course. What we have seen is that, the very first time that the legislation was used, it was used for over 200 hours. This is the opportunity for the parliament and the Senate to learn the lesson from the case of Dr Haneef and return us to a situation where people cannot be held indefinitely without charge. That does not stop investigations occurring, but it says: ‘Let’s operate properly in the way we have always operated, until this case of Dr Haneef.’

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

These amendments are completely unrelated to the subject matter of the Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 [2007] before the Senate. Indeed, may I say, I think it is inappropriate that we deal with these matters in this forum. The government obviously does not support the amendments proposed by the learned senator and, accordingly, they are opposed.

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

This is unsurprising, but Senator Nettle does understand the position that the Labor Party articulates when we see these matters that she occasionally runs up the flagpole. It is not and was not part of the original bill—Senator Nettle knows that. It certainly was not part of the matter that the Senate Standing Committee on Legal and Constitutional Affairs could deal with—Senator Nettle knows that. It is not related in that sense to this bill or the parts that fall within this bill—Senator Nettle also, I am sure, understands that. And I am sure that Senator Nettle also understands that the response that I am providing is the principal response of the Labor Party when matters that have not been through the usual process are run up.

This is a matter that Senator Nettle feels strongly about. I have usually been forthright in advising her that there are ways to bring these things before the parliament so she can consider them. There are private member’s bills and a range of other devices. As I understand it, she has also foreshadowed a committee. Be that as it may, Senator Nettle knows that there are a range of mechanisms to be used to appropriately deal with these things. I am not saying it is inappropriate or that she should not do it; I am simply saying that the Labor Party’s position is that we will not go to the substance or merit of the argument because it is a matter that has been tacked on to this bill and has not been through the committee process. It certainly has not been through our process in order to be able to deal with it in a proper and appropriate way. Senator Nettle knows that. I accept that occasionally she does bring these things on in this way. The response of the Labor Party should not surprise her. She has certainly heard me say this before. I can certainly recollect having provided the same view to her in the past.

On the other matter, the Labor Party has said that we think it does require an additional inquiry. We have said that publicly and we maintain that position. In terms of investigating the whole of the Dr Haneef matter, it should be dealt with in that way. I remind Senator Nettle—and I am sure she knows this—that the Australian Federal Police have an ongoing investigation into this matter. There is also an appeal of the 457 matter which is currently being proceeded with by Dr Haneef’s lawyers. This matter, as Senator Nettle knows, goes to the actual legislative regime itself and not so much to the Dr Haneef matter more broadly and so I will not argue that here. It is an inappropriate time to be doing that. I have set out the reasons we will not support this amendment to the bill.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

This is an opportunity for the Australian Democrats to also place on record our preferred mechanism for the handling of the Dr Mohamed Haneef inquiry. Like the Labor Party, we support the notion of an independent inquiry. That may be a judicial inquiry, which would probably be the strongest and most appropriate way to proceed. Having said that, in the early days of concerns emerging as to how this inquiry would proceed, we suggested that an appropriate channel for investigation or an appropriate independent authority would be the Ombudsman, recognising of course that the Ombudsman has the opportunity to operate as a law enforcement ombudsman and can investigate the policies, procedures and processes of the AFP. Obviously I note Senator Ludwig’s comments on the AFP investigation.

In relation to the broader issue of the functioning, appropriateness or success or otherwise of the operation of the antiterrorism laws that we have in this country, as I have made clear today with the notice I have given of the terms of reference for a proposed Senate select committee, the Democrats feel strongly that there is very good reason for a comprehensive analysis of the broad-ranging antiterrorism laws looking at how they function, how they are working and how they interact with reference to various rights and roles in the community. We are very much in favour of a cross-party Senate inquiry into the broader issue of the legislation, not specifically the Haneef case. I think that Dr Haneef’s case is worthy of an independent judicial inquiry—hence my concerns about the Greens’s proposed Senate inquiry into the Haneef case. I certainly think it is a good backup call, but I also feel very strongly that this is something that needs to be independently examined and I am not quite sure that politicians are the best people to do it. In fact, I am fairly confident that it would not be the most appropriate thing for us to do that.

In relation to the amendment before us, which obviously draws on the use and operation of the antiterrorism laws, I certainly understand and share the concerns that Senator Nettle has outlined. The Democrats will support this amendment, but I think that there are a couple of points that have been well made. In relation to the process, I do not particularly have a problem with people seeking to make broader amendments to legislation even if the legislation before us deals with a specific or other issue. As Senator Ludwig made clear, it is not procedurally incorrect; it is the right of any legislator to do that if they choose. It is a great opportunity. A lot of the amendments—including my own, I acknowledge—were circulated and tabled only today. I do not think that was the case for the government, but certainly the non-government parties circulated their amendments during the debate today. Possibly it would have been opportune to have examined this amendment earlier, simply because I think there are potential ramifications of this amendment that I may not be aware of. We have not had an opportunity to fully explore the effect of this particular amendment; although, as I said, from what I have heard from Senator Nettle, I certainly support its intent.

I am also wondering if this process adequately addresses some or indeed all of the concerns that the Democrats have about the handling of the Haneef case or those concerns that have been articulated by Senator Nettle for the Greens. For example, were ASIO powers involved also, not just those of the AFP? There are obviously some issues that have not been made public and that we cannot address in the chamber. I certainly appreciate Senator Nettle’s canny use of the Senate today in order to bring to the attention of the parliament and the community the issue of detention, ongoing detention and detention without charge and the impact they have on some basic civil liberties and human rights. I think a lot of Australians share those concerns. I am not sure if today is the day that we are going to resolve those concerns—hence my preference for a committee—but, on behalf of the Democrats, I will support Senator Nettle’s intent and thus this amendment before us, although I suspect the numbers are not in Senator Nettle’s favour.

Question put:

That the amendment (Senator Nettle’s) be agreed to.