Resumed from 19 March. The Chair of Committees (Hon Simon O’Brien) in the chair; Hon Sue Ellery (Leader of the House) in charge of the bill.

Clause 11: Section 66C inserted —

Progress was reported after the clause had been partly considered.

The CHAIR: The last time we were dealing with this bill, we were considering the question that clause 11, “Section 66C inserted”, do stand as printed. We dealt with the first amendment standing in the name of Hon Alison Xamon on a previous sitting day. I now offer the call to Hon Alison Xamon if she wishes to move her next amendment.

Hon ALISON XAMON: Thank you, Mr Chair. I do wish to move the second amendment that is standing in my name. Would you like me to read that out?

Hon Sue Ellery interjected.
The CHAIR: One moment. If Hon Alison Xamon wishes the call in respect of her amendment, I will give it to her. If she indicates that she does not wish to proceed with it, that is fine, too.

Hon ALISON XAMON: Thank you, Mr Chair. I indicate that there were two amendments, with one being dependent on the other. Amendment 1/11 has been defeated. Amendment 2/11 obviously flows from that. Clearly, I am not pursuing that particular amendment.

The CHAIR: With respect, member, it is not clear. It is on the supplementary notice paper. It is up to you to move it if you wish. If passed, the amendment can coexist with what is already there, even though others might have the view that it would not fit very well. There is no law that says that anything that comes out of this place has to make sense, although that is our preferred option. I take it that Hon Alison Xamon is telling me that, no, she is not going to move amendment 2/11.

Hon ALISON XAMON: Thank you, Mr Chair, for seeking clarification on that. You are absolutely correct; I am not seeking to move the amendment listed on the supplementary notice paper as amendment 2/11, but I am seeking to move the next amendment, which is amendment 3/11. I am happy to read that out if that is required. I move —

Page 8, after line 6 — To insert —

66D. Annual report to include information about application of s. 66C

(1)  The accountable authority, as defined in the Financial Management Act 2006, of the department of the Public Service principally assisting in the administration of this Act must, in each annual report submitted under the Financial Management Act 2006 Part 5, include information relating to action taken under section 66C(1) in proceedings on a case for bail in the financial year to which the annual report relates.

(2)  The information referred to in subsection (1) must, without disclosing terrorist intelligence information, specify —

(a)  the number of proceedings in which action was taken under section 66C(1); and(b)  in each of those proceedings whether the accused had access to the terrorist intelligence information received by the judicial officer and whether, and to what extent —

(i) evidence by or on behalf of the accused was received; and

(ii) argument by or on behalf of the accused was heard.

I have moved this amendment because it is part of the suite of concerns I have about ensuring that the effect of this bill, which is of course to deny the rule of law to a particular class of suspect, can at least have some minimal degree of oversight or accountability in terms of how it is applied. Under this amendment, information about the use of the secret evidence provisions, but not the content of the terrorist intelligence information, is made available to Parliament and, therefore, public. The term used is whether the accused was given access to the information. I queried this with the drafter as I think it is unlikely that the accused would ever get the full information, but sometimes the defence lawyer would get some. My understanding of the reply that I received is that this was considered during drafting, and the term “accused” is necessary because that is the term used in the bill. As the amendment is drafted, it would also cover information going to the accused’s lawyer but being withheld from the accused, if the lawyer was willing to give such an undertaking to the court. This proposed amendment does not change the policy intent of the bill; all it does is to ensure that Parliament can monitor how the competition between national security and ensuring that people receive a fair trial is being resolved on a case-by-case basis. It is not uncommon for Parliament to be able to receive these sorts of broad bits of information in terms of how particular provisions are being exercised. I think it is an important provision to be considered. I do not accept that the sort of information being proffered would compromise national security, which is of course the concern that people would legitimately have, but I think it would ensure some degree of transparency, albeit minimal, around how these provisions are operating in practice.

Comments and speeches from various members

Hon ALISON XAMON: I want to respond to a couple of the comments that were made. I want to confirm with the minister that if proposed subsection (2)(b) were to be removed from the amendment, I am still assuming that the government would not be prepared to support the amendment. Can I confirm that, please?

Hon SUE ELLERY: Yes. I said at the outset of my comments in response to Hon Michael Mischin that I still rely on the first arguments that I gave. We will not be supporting this amendment. We believe it poses a risk. In pointing out proposed subsection (2)(b), I was trying to draw Hon Michael Mischin’s attention to the fact that the amendment went further than he was suggesting.

Hon ALISON XAMON: I wanted to confirm that because I wanted to make it very clear that the government is not prepared to contemplate any part of this amendment. I also look at the Terrorism (Preventative Detention) Act 2006 quarterly reports that are tabled in this place. I take a keen interest in them. The sort of detail that would be required in these reports is a little bit more than simple sheer numbers. We already have that. They include the number of preventive detention orders made, but go on to detail the number of persons taken into custody, the number of persons kept in custody, how long each person was in detention and other information. This information is already provided to Parliament, as is appropriate. If part of the argument is that we are talking about large numbers, I have been monitoring this since I came back into this place and have been receiving the quarterly reports. I can advise members that in every instance it has been zero. We are clearly not talking about huge numbers of people pertaining to this. Because that act concerns extraordinary measures to deal with terrorist activity, Parliament at the time saw fit—I think, appropriately—to require some level of accountability coming back to Parliament about how it was being used.

I want to pick up on at least a couple of points made in the minister’s initial response to my amendment. By collating this information and increasing the number of persons who have access to the information, the minister expressed a concern that that would risk exposing the information to other sources and that disclosure could compromise the integrity of ongoing investigations. We are used to having a number of people who are security cleared and authorised to receive a lot of deeply sensitive high-level information. I do not think it would be beyond the wit of the Department of Justice to ensure that whoever is responsible for compiling that information has the appropriate security clearances. If they did not do that, I think it would be negligent on their part. I am not convinced that that is a particularly compelling argument. I am sure that we are not talking about sending an inexperienced intern across to access such sensitive information. I would think that anyone dealing in this realm would have the appropriate security clearances. I remind members that we are talking about the most minimal amount of information being made available to Parliament so we can at least be aware of what is going on. It is true that we are contemplating potentially having a review clause included. But should such an amendment be passed, after the review has been completed, there will be no capacity for Parliament to receive any sort of ongoing data. That is assuming that the review clause will be passed.

I believe that this is a minimum and important safeguard. As I indicated in an earlier debate, I would also have liked our senior law officer, the Attorney General, to receive minimal information. That has not been the will of the chamber. At the very least, I would consider that this amendment could and should be contemplated. Having said that, I am also prepared, subject to discussion, to look at dropping proposed subsection (2)(b) if that would make the amendment more palatable to other members in this place. I believe that if proposed section 66D(1) and 66D(2)(a) were passed, they would at least provide some degree of information. It would not be the full extent of information that I think Parliament is entitled to and should seek, but it would provide some comfort that at least the base level of information is being made available.

Comments and speeches from various members

Hon ALISON XAMON: I hear the government’s grave concerns about the compilation of this particular data. I need to refer to a foreshadowed amendment in order to make my point. I had originally put on the supplementary notice paper a review period after five years for this bill, and the government came back with a suggested review clause after three years. I have subsequently withdrawn my amendment because I am quite comfortable to go with the government’s proposed amendment instead. It begs the question though: would this not be the exact data that would need to be compiled in order to conduct that review? If not, what on earth would the review have the opportunity to look at? It would appear that should that amendment for a review be supported—if the government chooses to withdraw it, I will put mine straight back on the supplementary notice paper—that data will have to be compiled. My amendment basically says that that data needs to be made available to Parliament in the same way that we do with the Terrorism (Preventative Detention) Act 2006 provisions pertaining to section 54(2). I suppose that is my question. If the government is not going to compile it for any proposed review, what on earth would be in the review?

Comments and speeches from various members

Progress reported and leave granted to sit again, pursuant to standing orders.


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