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

Senator Nettle, we do see the principles that you enunciate clearly in terms of the way this has proceeded. It is wrapped up in a broader issue. In part you are arguing, if I understand correctly, that the minister should have a separate decision-making process apart from ASIO. In other words, ASIO would make a decision and the minister would then be able to agree or disagree with that.

That always creates an interesting position. Based on which criteria is the minister exercising a power? ASIO would make an assessment based on the intelligence assessment that is available to them. It might include confidential information. It could include a range of information from various sources that has been drawn together by ASIO and related agencies. ASIO, as our national intelligence organisation, would then make that assessment. The minister would then, in the normal course of events, rely on that assessment in making the determination. That is the way that I would see it operating.

It has operated in the past in that same way for a range of decisions by ministers. Decisions are based on assessments by, in this instance, ASIO. Departing from that I think would be fraught with some concern. What you then have to do is step the minister into the position of ASIO. You then have to say that the minister should assess the primary documents, the primary sources and all of the other evidence that might be garnered by ASIO in order to be in a position to make a determination—that is, if I understand the question correctly from the way that you have framed your amendment.

On that basis I could not see why we would support such a position. Effectively, you then would not be exercising a ministerial decision based on an ASIO report; you would have to make the primary decision yourself, as the minister. Why then would you have ASIO make the security assessment in the first place? I guess you would then have to have the minister or his delegates go and search out all of the relevant information to make a decision.

The usual course of events is that the minister does have to rely on security assessments. There is nothing to suggest that ASIO would not be making the appropriate security assessment in any event. Even in matters where ASIO do make security assessments, they are challengeable. If I remember correctly, that was challenged in the Scott Parkin matter and there was a judicial determination in that area. I know it is separate from it, but the primary area is that we are not minded to support the proposed amendment. We do see the points that you raise. We have read the committee report about this issue as well. It seems to suggest that there are differing legal views about this area as well and the matter remains unsettled. Although the proposed amendment does raise a matter regarding stateless people, we are not able to support it in total because of the way it is drafted.