Tuesday, 28 October 2014
Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014; In Committee
I accept what Senator Leyonhjelm says about the relationship between the bill and the explanatory memorandum. I think that that which ought to be in the bill should be in the bill, and it is no sufficient correction to put it into the explanatory memorandum. So, Senator Leyonhjelm, I agree with you that that is good drafting practice. However, that is really not the point here. What the amendment would do would be to introduce two additional exceptions to the unauthorised disclosure offence in the delayed notification search warrant regime. That regime is to be provided for by a new section, 3ZZHA, which sets out the offence and then sets out six circumstances that constitute exceptions to the offence. Those circumstances are various. I think it might be useful for this part of the debate if I read them to the chamber. The exceptions for the unauthorised disclosure of a delayed notification search warrant are that:
(a) the disclosure is in connection with the administration or execution of that part of the act;
(b) the disclosure is for the purposes of any legal proceeding arising out of or otherwise related to that part of the act or of any report of any such proceedings;
(c) the disclosure is in accordance with any requirement imposed by law;
(d) the disclosure is for the purposes of:
(i) the performance of duties or functions or the exercise of powers under or in relation to the relevant part of the act; or
(ii) the performance of duties or functions or the exercise of powers by a law enforcement officer, an officer of ASIO, a staff member of ASIO or a person seconded to either of those bodies;
(e) the disclosure is made after a warrant premises occupier’s notice or an adjoining premises occupier’s notice has been given in relation to the warrant; or
(f) the disclosure is made after a direction has been given under subsection 3ZZDA(4) or 3ZZDB(4) in relation to the warrant.
Those are the six exemptions from the operation of the offence-creating provision by subsection (1), and it is the view of the government, and it was the view of the PJCIS, that those are the only exemptions that should be provided for. The PJCIS did explore the appropriateness of the exemptions in the bill; it recognised the importance of striking a balance between allowing for appropriate disclosure while maintaining the integrity of sensitive terrorism investigations. Taking the appropriate balance into account, the committee recommended taking additional exceptions to the offences to address disclosure in the course of obtaining legal advice and disclosure of warrant information to the Ombudsman. The government accepted that recommendation, and is introducing amendments to address it. The amendments are intended to ensure that persons who wish to report misconduct have an appropriate avenue to do so. In addition, the Commonwealth DPP is required already to take the public interest into account in deciding whether or not to prosecute someone for the offence. The government does not consider that further amendments are necessary, given the significant safeguards that will apply to the delayed notification search warrant regime.
So Senator Leyonhjelm, as I say, public interest is already part of the law, and disclosure concerning corruption or misconduct—which is the point of your proposed subsection, paragraph (h)—is already dealt with by government amendment. For that reason and the reasons explained by the PJCIS, while having a degree of sympathy, if I may say so, with what you are seeking to achieve, what you are seeking to achieve is already achieved by existing law or by government amendments.