Michaelia Cash (WA, Liberal Party, Minister for Employment, Skills, Small and Family Business) Share this | Link to this | Hansard source

I table a supplementary explanatory memorandum and move government amendment (1) on sheet PJ101:

(1) Schedule 2, item 16, page 12 (after line 12), after subsection 105A.5(9), insert:

  (10) To avoid doubt, nothing in this section imposes an obligation on the offender to satisfy the Court that a claim of public interest immunity should not be upheld.

Note: The offender may seek to access any information, material or facts that are likely to be protected by public interest immunity (for example, through a subpoena). Under the law of public interest immunity, the person claiming the immunity must make and substantiate the claim, and satisfy the Court that the claim should be upheld.

The amendment responds to recommendation 1 of the Parliamentary Joint Committee on Intelligence and Security's advisory report on the bill regarding the operation of public interest immunity in relation to continuing detention order applications. The government again thanks the Parliamentary Joint Committee on Intelligence and Security for their advisory report on the bill. The committee recommended the passage of the bill subject to a recommendation regarding the operation of public interest immunity in relation to continuing detention order applications. The committee recommended that the bill and explanatory memorandum be amended so that, in respect of any application for a continuing detention order, the onus is on the Australian Federal Police minister to satisfy the court that any exculpatory information that is excluded from an application is protected by public interest immunity. Amendment (1) responds to that recommendation.

The bill and the explanatory memorandum that I have just tabled will be amended to clarify that the provisions of the bill do not alter the way in which the ordinary doctrine of public interest immunity would operate in practice. For the avoidance of doubt, the amendment will clarify that nothing in section 105A.5 of the Criminal Code imposes an obligation on the terrorist offender to satisfy a court that a claim of public interest immunity should not be upheld. The amendment will make it clear that, if the terrorist offender seeks to access any information, material or facts that are likely to be protected by public interest immunity, the person claiming the immunity must make and substantiate the claim and satisfy the court that the claim should be upheld. The amendment will be in the form of a new subsection 105A.5(10) and an accompanying legislative note. I commend the amendment to the chamber.

Murray Watt (Queensland, Australian Labor Party, Shadow Minister for Northern Australia) Share this | Link to this | Hansard source

Labor will be supporting this amendment. As set out in the committee's report, a number of stakeholders expressed concern that the bill would allow the AFP minister or an agency to withhold exculpatory material from a terrorist offender in an application for a continuing detention order. This could happen in circumstances where the agency or minister believes that the exculpatory material would be the subject of a claim for public interest immunity. The committee sought to respond to some but not all of those concerns by recommending that the bill:

… be amended so that, in respect of any application for a continuing detention order, the onus is on the Australian Federal Police Minister to satisfy the Court that any exculpatory information that is excluded from an application is protected by public interest immunity.

This amendment implements that recommendation, and Labor supports it.

Question agreed to.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.