The Temporary Chairman:

The question is that the bill stand as printed.

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

I table a supplementary explanatory memorandum relating to the government amendments to be moved to this bill. The memorandum was circulated in the chamber on 7 August 2007.

The Temporary Chairman:

We are waiting for the first page of the running sheet. Its arrival is imminent.

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

To assist the chamber, I indicated areas where the Democrats had concerns. Obviously, we have amendments flowing from those concerns. They are in the process of being circulated. Senator Nettle’s amendments have just been circulated as well. Perhaps we can proceed with some of the government amendments on which we agree. I am not sure whether that assists the chamber.

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

Perhaps I can assist the chamber. What you have heard from the minister today should make him hang his head in shame for his completely embarrassing performance. All he has been able to do is attempt to slap the opposition for pointing out his own inadequacies in dealing with this legislation. That is what the minister has done today. You are a complete embarrassment not only to the coalition but also, I suggest, to the service people who have to rely on you, Minister, and have confidence in your judgement and your decision making. What we have now heard from you is an embarrassing attack which is fatuous and also incorrect in many respects. It does you no good and, quite frankly, it does not instil confidence in the service people who have to rely on your judgement.

It concerns me that you in fact rise to that. It is not a matter that I went to in my speech in the second reading debate, but you have now forced me to respond to the errors and omissions that you have allowed in dealing with this legislation in the first instance. We now have quite an embarrassing position where you have been forced to back down on the legislation that you brought into the chamber originally. The Senate committee has highlighted the inadequacies, problems and omissions that you have presided over. Bring back Senator Ellison from Cable Beach, I say, because this place has some confidence that he would be able to ensure that we do have a proper process.

It does not, in fact, stop there. What concerns me even more is that the Labor Party have been saying consistently that ACLEI does require oversight not only of the Australian Federal Police and the Australian Crime Commission, the ACC; we have also included Customs. Why have we said Customs? Because, Senator, they carry guns. You may not know that; they actually do that and they can use lethal force in the exercise of their powers. It is not as limited as what you may think, quite frankly—and in that regard they do require oversight.

They also provide joint operations. They go on controlled operations with the Australian Federal Police. It is narrow-minded to suggest that ACLEI should only concentrate on the Australian Federal Police. Senator Johnston, I am not convinced that you in fact know the Australian Federal Police, Customs or Australian Crime Commission service people in your portfolio all that well. In fact, you have backed down, and you have not even acknowledged that. Your amendments to be moved today do precisely that. The Labor Party are big enough to say that we supported the Senate committee recommendations. You need to rise to that challenge and say that you recognise that the Senate committee has identified holes in your legislation and that you need to correct it. But you have not been big enough to say that.

The Labor Party are big enough to say that, because the government has picked up the committee recommendations, we do not now need to move amendments. We thank the government for recognising the errors and omissions in its primary legislation, which it should not have brought before the Senate committee in the first place without having those remedied. The Senate committee is not your oversight body. It is not your backstop for picking up errors, omissions and where you have overreached. The Senate committee is about scrutinising your final effort—and your final effort was not very good, quite frankly.

In addition to that—I was not going to mention it, but now that you have provoked me into it I will—you need to clarify the delayed notification warrants. You will get an opportunity to clarify those. You will get an opportunity to clarify what your remarks—

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

Clarify what?

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

I will go to what those remarks are. Your reason for the issuing of warrants remaining with judges is still not clear. Your press release of 1 August 2007 states:

The Minister for Justice and Customs Senator David Johnston sought to clarify reports of the position of the Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006: delayed notification search warrants, to be debated in the Senate next week.

“Suggestions that warrants will be issued by police officers themselves under these amendments is simply not correct,” Senator Johnston said.

I wonder where that came from. Perhaps the minister could take the opportunity of telling us where it came from, because when you look at the material it does tend to point to you, Senator Johnston, as not knowing your own legislation and not knowing that delayed notifications have oversight. That is what it points to, quite frankly, when you read the transcript. And it seems to suggest that that is why you had to put out a media release to clarify the position.

You were asked about it on the ABC by Mark Colvin:

MARK COLVIN: You said to The Sydney Morning Herald that … they say this: “the lack of judicial oversight was justified by the Minister for Justice and Customs David Johnston on the grounds that a court or judicial officer might leak news of the warrant. I don’t want to impugn anyone but the security of these operation has to be pristine.”

DAVID JOHNSTON: That is a complete fabrication of what I said.

MARK COLVIN: They lied about the quote?—

there was a pause—

DAVID JOHNSTON: Well I’m not saying that they lied. I just don’t believe that the act has been read. It is crystal clear. When people put questions to me I presume and want to understand that they have taken the time to read the legislation.

Senator Johnston, I do not believe what you have put forward, because you have said: ‘I am not saying they have lied; I do not believe that act has been read.’ It seems to me that of course the act may not have been read. It may not have been read by Senator Johnston—that is the problem. That seems to be the heart of the matter—that it may not have been read by you, Senator Johnston. In your statement, ‘I do not want to impugn anyone but the security of these operations has to be pristine,’ who in fact are you collecting into that broad sweep? Who are you saying falls under that hammer? Who would you be impugning by saying that?

Let us go back to the legislation itself. It is crystal clear that the Senate committee made recommendations. The Senate committee made those recommendations, but you did not take the opportunity, Senator Johnston, in your summing-up, to go to those recommendations—which it is usual to do—and to say, ‘We support this recommendation; we do not support that recommendation for this particular reason and that is reflected in the amendment.’ You will get an opportunity to say that, and I hope you can at least clarify that you have picked up important recommendations of the Senate committee, and you can thank the Senate committee for finding those for you.

Another part of this which seems to have escaped you is that the Labor Party say that ACLEI should have oversight. If you had done your homework, you would have gone back and looked at the Senate committee transcript of Thursday, 27 April 2006, where Commissioner Keelty said:

It is a difficult situation I find myself in because of the question. One of the reasons why I am here appearing personally before this committee is because I initiated the Fisher review. I believe firmly that integrity is the core value of the AFP. I have to say to you that it is a question that I have asked myself. Part of the core business of the AFP—our remit—is to investigate and apply the fraud control policy of the Commonwealth to other Commonwealth agencies. There is a gap here—and I do not want to name agencies—if you look at the powers, such as access to search warrants, access to the use of firearms and access to detention.

That was in the ACLEI inquiry, where there was a gap. Labor was trying to fill that gap. Your response to that has only included the Australian Federal Police and the Australian Crime Commission—you want to fill that gap. A gap that is required to be filled remains here, Senator Johnston. Your response is, ‘No, we will not fill that gap.’

Senator Johnston, you have the opportunity here today to fill that gap if you so wish. You could make the statement today that you intend to use the regulation-making power to expand it out. We do not agree with that; we think it should have been part of the substantive provisions within the bill. You have the ability, without bringing it here, to expand it to include those agencies that I have mentioned, and you have the opportunity to be able to clarify your press release once again, which I was not going to go to earlier today. But, Senator Johnston, it seems that you cannot stop yourself from provoking with misstatements about the opposition. We have been supportive of antiterrorism laws throughout. We have made practical and meaningful suggestions. Perhaps you have not been here during those debates—maybe you have been at Cable Beach, too!

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

These amendments are in response to the Senate committee report but they also stand alone. With the greatest respect to the learned senator representing the opposition’s shadow portfolio in this area, may I say that he has absolutely no real, practical understanding of how these amendments will work. Indeed, one has to ask whether he has any practical experience in the law at all. Late notification warrants, by their very function, obviate judicial oversight. Of course, the learned senator would not need any reminding by me of these things if he had any grasp of this. It is quite interesting that I have to lecture the opposition on this. The classic remedy for a warrant is to obtain an injunction, and that is to put material before a judge which must be responded to on a balance of probabilities.

I am taking the learned senator into areas into which he has quite obviously never been. In the notion of lack of judicial oversight, clearly a late notification warrant precludes remedies such as injunctions, because the person named in the warrant does not get notice of the warrant. If, of course, there had been some understanding at all in this regard, the very learned senator would have understood what I was talking about. Indeed, if he had read the bill and the amendments, he would know what in fact is going on here today. It is very, very interesting that he comes into this place seeking to inhibit the powers of the Australian Federal Police and seeking to suggest that the definition of ‘serious offence’ for late notice warrants is, in fact, too broad. I have set out what those matters are. They include matters relating to the overthrow of a foreign government—I would have thought that was very serious. I am interested in him addressing those questions.

The amendments come in response to the recommendations put forward by the Senate standing committee. I hope the learned senator is listening carefully to what I say here, because I am sure it will be edifying. I thank the committee for its comprehensive report, and I note that I am recommending that the Senate accept almost all of the committee’s recommendations, either in full or in part. The proposed amendments relate primarily to the authorisation and extension of controlled operations, witness identity protection and delayed notification search warrants, as well as important changes to the Australian Crime Commission. Also included are minor but much needed changes to the Australia Federal Police Act 1979 and the Crimes (Aviation) Act 1991. I table the government’s responses to the committee’s recommendations, as set out in the tabling statement. For the benefit of Senator Ludwig, the responses are clearly set out in table form so that he might see them and understand them.

The first significant amendment would delete proposed section 15GE(3) in the bill in order to prevent offences carrying a penalty of less than three years imprisonment from being included in the definition of ‘serious offence’ by regulation. This response to recommendation 1 of the committee report addresses the committee’s concern that the inclusion of a regulation-making power could potentially mean that any Commonwealth offence could be the subject of a controlled operation.

With respect to controlled operations, let us talk about the external oversight of extensions for controlled operations. I propose changes to the bill to allow an extension of controlled operations beyond the 12-month period to be approved by a member of the Administrative Appeals Tribunal. The inclusion of the Administrative Appeals Tribunal would bring an external oversight role to the decision to extend controlled operations. This proposed amendment responds, in part, to recommendation 2 of the committee’s report.

I also propose adding corresponding provisions that provide for AAT members to be nominated to participate in the review of extensions and to be authorised to grant authority for extensions. The conferral of this role on the AAT would partially restore the approach under the existing Crimes Act, which requires Administrative Appeals Tribunal approval for extensions beyond three months. I refer the chamber to section 15OB of the act.

Further amendments I am proposing would require law enforcement agencies to report to the Commonwealth Ombudsman on the number of extensions granted or refused by a nominated member of the Administrative Appeals Tribunal. The requirement to report to the Ombudsman would be included as part of the reporting requirements in proposed section 15HH(2) and would allow the Ombudsman to seek additional information under proposed subsection 15HH(3), if required.

With respect to witness identity protection, I am responding to recommendation 5 of the committee’s report by moving an amendment to proposed section 15KP to prohibit the retention, copying or recording by a presiding officer—for example, a judge or a 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. Although this would lead to a departure from the national model legislation, this proposed amendment would ensure that the true identity of the operative is not revealed or compromised by the actions of the presiding officer.

With respect to delayed notification search warrants, I am moving an amendment to proposed section 3SY to require the Ombudsman to conduct an inspection of agency files and issue at least every six months a report to the minister in relation to the administration of delayed notification warrants.

Progress reported.