Division Description Changes — Bills — Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014; in Committee — 28th Oct 2014

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senate vote 2014-10-28#5 Edited by mackay staff on 2014-10-30 07:45:26	Title ~~Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 - In Committee - No extra defences to unauthorise disclosure offence~~ Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 - In Committee - Add extra defences to unauthorise disclosure offence Description
senate vote 2014-10-28#5 Edited by Henare Degan on 2014-10-30 07:21:35	Title Description The majority were against including two more defences to the [unauthorised disclosure offence](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034). The two defences would have been that the disclosures were: 1. made reasonably and in [good faith](http://en.wikipedia.org/wiki/Good_faith), and in the [public interest](http://en.wikipedia.org/wiki/Public_interest) 2. concerned [corruption](http://en.wikipedia.org/wiki/Corruption) or [misconduct](http://en.wikipedia.org/wiki/Misconduct) in relation to the issuing or execution of a [delayed notification search warrant](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034) (DNSW) Liberal Democratic Party Senator [David Leyonhjelm](https://theyvoteforyou.org.au/people/senate/nsw/david_leyonhjelm) had [proposed](http://www.openaustralia.org/senate/?gid=2014-10-28.186.1) to include these two exceptions. ###Offence for unauthorised disclosure A person commits the [offence for unauthorised disclosure](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034) if they disclose information that relates to a [delayed notification search warrant](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034) (DNSW) (maximum sentence is two years jail). The DNSW scheme will let the [Australian Federal Police](http://en.wikipedia.org/wiki/Australian_Federal_Police) (AFP) do searches without letting the owner or occupier know until later. ###Background to the bill A number of incidents happened before and after this bill's introduction. There was [one of the biggest counter-terrorism operations](http://www.abc.net.au/news/2014-09-18/authorities-thwart-beheading-plot-in-australias-biggest-raid/5754276) in Australian history. The Prime Minister [Tony Abbott](https://theyvoteforyou.org.au/people/representatives/warringah/tony_abbott) also confirmed that Australia would be [sending the military to Iraq](http://www.abc.net.au/news/2014-10-15/special-forces-could-move-into-iraq-within-days-abbott/5815534) to fight the [Islamic State](http://en.wikipedia.org/wiki/Islamic_State_of_Iraq_and_the_Levant) (IS) (also known as the Islamic State of Iraq and Syria (ISIS) or the Islamic State of Iraq and the Levant (ISIL)). Two particularly significant incidents were when: * Australian teenager [Abdullah Elmir](http://www.abc.net.au/news/2014-10-21/australian-is-fighter-threatens-tony-abbott-in-video/5830040) threatened Prime Minister Tony Abbott in an IS video; * Canadian gunman [Michael Zehaf-Bibeau](http://www.abc.net.au/news/2014-10-23/canadian-parliament-in-lockdown-after-gunman-shoots-soldier/5834692) attacked the Canadian Parliament. Read the [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034) for more information about the bill.
senate vote 2014-10-28#5 Edited by Henare Degan on 2014-10-30 07:21:03	Title Description The majority were against including two more defences to the [unauthorised disclosure offence](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034). The two defences would have been that the disclosures were: 1. made reasonably and in [good faith](http://en.wikipedia.org/wiki/Good_faith), and in the [public interest](http://en.wikipedia.org/wiki/Public_interest) 2. concerned [corruption](http://en.wikipedia.org/wiki/Corruption) or [misconduct](http://en.wikipedia.org/wiki/Misconduct) in relation to the issuing or execution of a [delayed notification search warrant](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034) (DNSW) Liberal Democratic Party Senator [David Leyonhjelm](https://theyvoteforyou.org.au/people/senate/nsw/david_leyonhjelm) had [proposed](http://www.openaustralia.org/senate/?gid=2014-10-28.186.1) to include these two exceptions. ###Offence for unauthorised disclosure A person commits the [offence for unauthorised disclosure](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034) if they disclose information that relates to a [delayed notification search warrant](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034) (DNSW) (maximum sentence is two years jail). The DNSW scheme will let the [Australian Federal Police](http://en.wikipedia.org/wiki/Australian_Federal_Police) (AFP) do searches without letting the owner or occupier know until later. ###Background to the bill A number of incidents happened before and after this bill's introduction. There was [one of the biggest counter-terrorism operations](http://www.abc.net.au/news/2014-09-18/authorities-thwart-beheading-plot-in-australias-biggest-raid/5754276) in Australian history. The Prime Minister [Tony Abbott](https://theyvoteforyou.org.au/people/representatives/warringah/tony_abbott) also confirmed that Australia would be [sending the military to Iraq](http://www.abc.net.au/news/2014-10-15/special-forces-could-move-into-iraq-within-days-abbott/5815534) to fight the [Islamic State](http://en.wikipedia.org/wiki/Islamic_State_of_Iraq_and_the_Levant) (IS) (also known as the Islamic State of Iraq and Syria (ISIS) or the Islamic State of Iraq and the Levant (ISIL)). Two particularly significant incidents were when: * Australian teenager [Abdullah Elmir](http://www.abc.net.au/news/2014-10-21/australian-is-fighter-threatens-tony-abbott-in-video/5830040) threatened Prime Minister Tony Abbott in an IS video; * Canadian gunman [Michael Zehaf-Bibeau](http://www.abc.net.au/news/2014-10-23/canadian-parliament-in-lockdown-after-gunman-shoots-soldier/5834692) attacked the Canadian Parliament. Read the [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034) for more information about the bill.
senate vote 2014-10-28#5 Edited by mackay staff on 2014-10-29 20:55:39	Title Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 - In Committee - David Leyonhjelm amendment 1 Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 - In Committee - No extra defences to unauthorise disclosure offence Description This vote was to decide if [David Leyonhjelm](https://theyvoteforyou.org.au/people/senate/nsw/david_leyonhjelm)’s first amendment should be part of this bill. The majority were against including two more defences to the [unauthorised disclosure offence](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034). The two defences would have been that the disclosures were: 1. made reasonably and in [good faith](http://en.wikipedia.org/wiki/Good_faith), and in the [public interest](http://en.wikipedia.org/wiki/Public_interest) 2. concerned [corruption](http://en.wikipedia.org/wiki/Corruption) or [misconduct](http://en.wikipedia.org/wiki/Misconduct) in relation to the issuing or execution of a [delayed notification search warrant](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034) (DNSW) Leyonhjelm [summarised the amendment](http://www.openaustralia.org/senate/?id=2014-10-28.153.1#g186.1) as: Liberal Democratic Party Senator [David Leyonhjelm](https://theyvoteforyou.org.au/people/senate/nsw/david_leyonhjelm) had [proposed](http://www.openaustralia.org/senate/?gid=2014-10-28.186.1) to include these two exceptions. > Very simply, this amendment ensures that the public interest defence, and also the conduct or misconduct defence, are in the bill and not in the explanatory memorandum. The significance of this is quite simply that the explanatory memorandum is not referred to unless the bill is poorly drafted—unless the meaning is unclear. The explanatory memorandum is not the law. The law is what is in the bill. It does not help to go adding things to the explanatory memorandum, except in cases where the law is not clear. The law is clear. Therefore, the public interest defence for a disclosure of delayed notification, or instances of corruption or misconduct, will not be available to defendants as a defence under normal circumstances. Indeed, it would only be available to defendants under circumstances where the court felt that the bill had not been drafted sufficiently accurately. Therefore, it is important that it be in the bill and not left to the explanatory memorandum. ###Offence for unauthorised disclosure ~~Also see the vote over [David Leyonhjelm’s second amendment to the bill](https://theyvoteforyou.org.au/divisions/senate/2014-10-28/6).~~ A person commits the [offence for unauthorised disclosure](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034) if they disclose information that relates to a [delayed notification search warrant](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034) (DNSW) (maximum sentence is two years jail). The DNSW scheme will let the [Australian Federal Police](http://en.wikipedia.org/wiki/Australian_Federal_Police) (AFP) do searches without letting the owner or occupier know until later. ###Background to the bill A number of incidents happened before and after this bill's introduction. There was [one of the biggest counter-terrorism operations](http://www.abc.net.au/news/2014-09-18/authorities-thwart-beheading-plot-in-australias-biggest-raid/5754276) in Australian history. The Prime Minister [Tony Abbott](https://theyvoteforyou.org.au/people/representatives/warringah/tony_abbott) also confirmed that Australia would be [sending the military to Iraq](http://www.abc.net.au/news/2014-10-15/special-forces-could-move-into-iraq-within-days-abbott/5815534) to fight the [Islamic State](http://en.wikipedia.org/wiki/Islamic_State_of_Iraq_and_the_Levant) (IS) (also known as the Islamic State of Iraq and Syria (ISIS) or the Islamic State of Iraq and the Levant (ISIL)). Two particularly significant incidents were when: * Australian teenager [Abdullah Elmir](http://www.abc.net.au/news/2014-10-21/australian-is-fighter-threatens-tony-abbott-in-video/5830040) threatened Prime Minister Tony Abbott in an IS video; * Canadian gunman [Michael Zehaf-Bibeau](http://www.abc.net.au/news/2014-10-23/canadian-parliament-in-lockdown-after-gunman-shoots-soldier/5834692) attacked the Canadian Parliament. Read the [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034) for more information about the bill.
senate vote 2014-10-28#5 Edited by Luke Bacon on 2014-10-29 13:37:15	Title Description This vote was to decide if [David Leyonhjelm](https://theyvoteforyou.org.au/people/senate/nsw/david_leyonhjelm)’s first amendment should be part of this bill. Leyonhjelm [summarised the amendment](http://www.openaustralia.org/senate/?id=2014-10-28.153.1#g186.1) as: > Very simply, this amendment ensures that the public interest defence, and also the conduct or misconduct defence, are in the bill and not in the explanatory memorandum. The significance of this is quite simply that the explanatory memorandum is not referred to unless the bill is poorly drafted—unless the meaning is unclear. The explanatory memorandum is not the law. The law is what is in the bill. It does not help to go adding things to the explanatory memorandum, except in cases where the law is not clear. The law is clear. Therefore, the public interest defence for a disclosure of delayed notification, or instances of corruption or misconduct, will not be available to defendants as a defence under normal circumstances. Indeed, it would only be available to defendants under circumstances where the court felt that the bill had not been drafted sufficiently accurately. Therefore, it is important that it be in the bill and not left to the explanatory memorandum. > Very simply, this amendment ensures that the public interest defence, and also the conduct or misconduct defence, are in the bill and not in the explanatory memorandum. The significance of this is quite simply that the explanatory memorandum is not referred to unless the bill is poorly drafted—unless the meaning is unclear. The explanatory memorandum is not the law. The law is what is in the bill. It does not help to go adding things to the explanatory memorandum, except in cases where the law is not clear. The law is clear. Therefore, the public interest defence for a disclosure of delayed notification, or instances of corruption or misconduct, will not be available to defendants as a defence under normal circumstances. Indeed, it would only be available to defendants under circumstances where the court felt that the bill had not been drafted sufficiently accurately. Therefore, it is important that it be in the bill and not left to the explanatory memorandum. *Also see the vote over [David Leyonhjelm’s second amendment* to the bill](https://theyvoteforyou.org.au/divisions/senate/2014-10-28/6).**
senate vote 2014-10-28#5 Edited by Luke Bacon on 2014-10-29 13:33:06	Title Description [This vote](http://www.openaustralia.org/senate/?id=2014-10-28.153.1#g186.1) was to decide if [David Leyonhjelm](https://theyvoteforyou.org.au/people/senate/nsw/david_leyonhjelm)’s first amendment should be part of this bill. This vote was to decide if [David Leyonhjelm](https://theyvoteforyou.org.au/people/senate/nsw/david_leyonhjelm)’s first amendment should be part of this bill. Leyonhjelm [summarised the amendment](http://www.openaustralia.org/senate/?id=2014-10-28.153.1#g186.1) as: > Very simply, this amendment ensures that the public interest defence, and also the conduct or misconduct defence, are in the bill and not in the explanatory memorandum. The significance of this is quite simply that the explanatory memorandum is not referred to unless the bill is poorly drafted—unless the meaning is unclear. The explanatory memorandum is not the law. The law is what is in the bill. It does not help to go adding things to the explanatory memorandum, except in cases where the law is not clear. The law is clear. Therefore, the public interest defence for a disclosure of delayed notification, or instances of corruption or misconduct, will not be available to defendants as a defence under normal circumstances. Indeed, it would only be available to defendants under circumstances where the court felt that the bill had not been drafted sufficiently accurately. Therefore, it is important that it be in the bill and not left to the explanatory memorandum.
senate vote 2014-10-28#5 Edited by Luke Bacon on 2014-10-29 13:31:56	Title Description ~~[This vote](http://www.openaustralia.org/senate/?id=2014-10-28.153.1#g186.1) was to decide if David Leyonhjelm's first amendment should be part of this bill.~~ [This vote](http://www.openaustralia.org/senate/?id=2014-10-28.153.1#g186.1) was to decide if [David Leyonhjelm](https://theyvoteforyou.org.au/people/senate/nsw/david_leyonhjelm)’s first amendment should be part of this bill. Leyonhjelm [summarised the amendment](http://www.openaustralia.org/senate/?id=2014-10-28.153.1#g186.1) as: > Very simply, this amendment ensures that the public interest defence, and also the conduct or misconduct defence, are in the bill and not in the explanatory memorandum. The significance of this is quite simply that the explanatory memorandum is not referred to unless the bill is poorly drafted—unless the meaning is unclear. The explanatory memorandum is not the law. The law is what is in the bill. It does not help to go adding things to the explanatory memorandum, except in cases where the law is not clear. The law is clear. Therefore, the public interest defence for a disclosure of delayed notification, or instances of corruption or misconduct, will not be available to defendants as a defence under normal circumstances. Indeed, it would only be available to defendants under circumstances where the court felt that the bill had not been drafted sufficiently accurately. Therefore, it is important that it be in the bill and not left to the explanatory memorandum.
senate vote 2014-10-28#5 Edited by Luke Bacon on 2014-10-29 13:31:15	Title Description ~~[This vote](http://www.openaustralia.org/senate/?id=2014-10-28.153.1#g186.1) was to decide if David Leyonhjelm's first amendment should be part of this bill.~~ [This vote](http://www.openaustralia.org/senate/?id=2014-10-28.153.1#g186.1) was to decide if David Leyonhjelm's first amendment should be part of this bill. Leyonhjelm [summarised the amendment](http://www.openaustralia.org/senate/?id=2014-10-28.153.1#g186.1) as: > Very simply, this amendment ensures that the public interest defence, and also the conduct or misconduct defence, are in the bill and not in the explanatory memorandum. The significance of this is quite simply that the explanatory memorandum is not referred to unless the bill is poorly drafted—unless the meaning is unclear. The explanatory memorandum is not the law. The law is what is in the bill. It does not help to go adding things to the explanatory memorandum, except in cases where the law is not clear. The law is clear. Therefore, the public interest defence for a disclosure of delayed notification, or instances of corruption or misconduct, will not be available to defendants as a defence under normal circumstances. Indeed, it would only be available to defendants under circumstances where the court felt that the bill had not been drafted sufficiently accurately. Therefore, it is important that it be in the bill and not left to the explanatory memorandum.
senate vote 2014-10-28#5 Edited by Henare Degan on 2014-10-29 13:23:45	Title Bills — Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014; in Committee Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 - In Committee - David Leyonhjelm amendment 1 Description ~~<p class="speaker">George Brandis</p>~~ ~~<p>I move government amendment (7), on sheet ZA358:</p>~~ ~~<p class="italic">(7) Schedule 1, page 12 (after line 10), after item 34, insert:</p>~~ [This vote](http://www.openaustralia.org/senate/?id=2014-10-28.153.1#g186.1) was to decide if David Leyonhjelm's first amendment should be part of this bill. ~~<p class="italic">34A At the end of section 38</p>~~ ~~<p class="italic">  Add:</p>~~ <p class="italic">(7) Before the end of the following periods, the Attorney-General must consider whether to revoke a certificate certifying in accordance with paragraph (2)(a) (if the certificate remains in force):</p> ~~<p class="italic">  (a) 12 months after it was issued;</p>~~ ~~<p class="italic">  (b) 12 months after the Attorney-General last considered whether to revoke it.</p>~~ ~~<p class="italic">34B Application</p>~~ ~~<p class="italic">  Subsection 38(7) of the <i>Australian Security Intelligence Organisation Act 1979</i> applies to certificates issued on or after the commencement of that subsection.</p>~~ <p>Amendment (7) implements recommendation No. 28 of the PJCIS by requiring that a certificate be issued by the Attorney-General under paragraph 38(2)(a) of the ASIO Act and be reviewed within 12 months of the issuance of the certificate and then every 12 months after it has been last renewed.</p> <p>The effect is to ensure annual review of certificates that would enable silent passport cancellations. This is another of the safeguards, Mr Chairman, that have been accepted by the government as prudent measures, following the PJCIS recommendations. The powers under paragraph 38(2)(a) of the ASIO Act are extraordinary powers. They are only exercised in very exceptional circumstances. But it is appropriate that a certificate issued by the Attorney-General under that provision be reviewed and only, if necessary, renewed on an annual basis.</p> ~~<p>Question agreed to.</p>~~ ~~<p>by leave—I move government amendments (11) to (13) together:</p>~~ ~~<p class="italic">(11) Schedule 1, item 51, page 20 (line 28), omit "member;", substitute "member.".</p>~~ ~~<p class="italic">(12) Schedule 1, item 51, page 20 (lines 29 and 30), omit paragraphs 3ZZAF(1)(c) and (d).</p>~~ ~~<p class="italic">(13) Schedule 1, item 51, page 20 (lines 32 and 33), omit "part-time senior member or a member", substitute "full-time senior member".</p>~~ <p>Amendments (11) to (13) implement the first recommendation of the PJCIS report by limiting the AAT members authorised to issue a delayed notification search warrant, and to perform related functions, to the deputy president and full-time senior members. But for this amendment those functions could be performed by all members of the AAT. The government is convinced and accepts the view that, given the gravity of the powers exercisable under a delayed notification search warrant, the authorisation should only be made by a relatively senior member of the judiciary, and therefore only members of the AAT who serve at the most senior tiers of that tribunal ought to be issuing authorities.</p> ~~<p>Question agreed to.</p>~~ ~~<p>I move government amendment (14):</p>~~ ~~<p class="italic">(14) Schedule 1, item 51, page 44 (line 18), omit "18", substitute "12".</p>~~ <p>Government amendment (14) implements PJCIS recommendation No. 2 by reducing from 18 months to 12 months the maximum period before which the occupier of premises that have been the subject of a delayed notification search warrant, or the occupier of adjoining premises, be notified. Any extension beyond 12 months would require ministerial authorisation. Once again, this is an additional safeguard or a confinement of an extraordinary power. The government is of the view that the period should in all the circumstances be foreshortened from the initial period specified in the bill to 12 months.</p> ~~<p>Question agreed to.</p>~~ ~~<p>by leave—I move government amendments (15) and (16) together:</p>~~ ~~<p class="italic">(15) Schedule 1, item 51, page 59 (after line 32), after paragraph 3ZZHA(2)(a), insert:</p>~~ ~~<p class="italic">  (aa) the disclosure is for the purposes of obtaining or providing legal advice related to this Part;</p>~~ ~~<p class="italic">(16) Schedule 1, item 51, page 60 (after line 13), after paragraph 3ZZHA(2)(d), insert:</p>~~ <p class="italic">  (da) the disclosure is made by anyone to the Ombudsman, a Deputy Commonwealth Ombudsman or a member of the Ombudsman's staff (whether in connection with the exercise of powers or performance of functions under Division 7, in connection with a complaint made to the Ombudsman or in any other circumstances);</p> <p>Amendments (15) and (16) implement recommendation 3 of the PJCIS report by strengthening the unauthorised disclosure of information offences. The amendments exempt disclosure in the course of obtaining or providing legal advice, and disclosure of warrant information to the ombudsman from the disclosure of offences in the bill.</p> ~~<p>Question agreed to.</p>~~ ~~<p class="speaker">David Leyonhjelm</p>~~ ~~<p>I move amendment (1) on sheet 7597:</p>~~ ~~<p class="italic">(1) Schedule 1, item 51, page 60 (line 19), at the end of subsection 3ZZHA(2), add:</p>~~ ~~<p class="italic">  ; (g) the disclosure is made reasonably and in good faith, and in the public interest;</p>~~ ~~<p class="italic">(h) the disclosure concerns corruption or misconduct in relation to the issuing or execution of a delayed notification search warrant.</p>~~ <p>Very simply, this amendment ensures that the public interest defence, and also the conduct or misconduct defence, are in the bill and not in the explanatory memorandum. The significance of this is quite simply that the explanatory memorandum is not referred to unless the bill is poorly drafted—unless the meaning is unclear. The explanatory memorandum is not the law. The law is what is in the bill. It does not help to go adding things to the explanatory memorandum, except in cases where the law is not clear. The law is clear. Therefore, the public interest defence for a disclosure of delayed notification, or instances of corruption or misconduct, will not be available to defendants as a defence under normal circumstances. Indeed, it would only be available to defendants under circumstances where the court felt that the bill had not been drafted sufficiently accurately. Therefore, it is important that it be in the bill and not left to the explanatory memorandum.</p> ~~<p class="speaker">George Brandis</p>~~ <p>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:</p> ~~<p class="italic">(a) the disclosure is in connection with the administration or execution of that part of the act;</p>~~ ~~<p class="italic">(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;</p>~~ ~~<p class="italic">(c) the disclosure is in accordance with any requirement imposed by law;</p>~~ ~~<p class="italic">(d) the disclosure is for the purposes of:</p>~~ ~~<p class="italic">  (i) the performance of duties or functions or the exercise of powers under or in relation to the relevant part of the act; or</p>~~ <p class="italic">  (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;</p> ~~<p class="italic">(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</p>~~ ~~<p class="italic">(f) the disclosure is made after a direction has been given under subsection 3ZZDA(4) or 3ZZDB(4) in relation to the warrant.</p>~~ <p>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.</p> <p>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.</p> ~~<p class="speaker">Jacinta Collins</p>~~ <p>Labor understands the points that Senator Leyonhjelm has raised, and we understand his strongly-held views about these issues. However, we oppose this amendment, which cuts against the purpose and effectiveness of the delayed notification warrant scheme, in our view. It is worth turning to the intelligence report, which says of this scheme at 2.47:</p> ~~<p class="italic">According to the Explanatory Memorandum, the scheme will differ from the existing search warrant provisions so as to enable</p>~~ ~~<ul></ul><p>And at 2.48:</p>~~ ~~<p class="italic">The ability to conduct a covert search is considered important because it will</p>~~ <ul></ul><ul></ul><p>On this basis, though it took into account the sorts of concerns raised here by Senator Leyonhjelm, the intelligence committee decided against any such exception being inserted into the bill. A similar scheme has operated without any apparent difficulty in the Crimes Act, and we are satisfied that the general safeguards which apply to the AFP—and with the passage of this bill, the new oversight powers of the intelligence committee—that there is no need for this amendment.</p> ~~<p class="speaker">Penny Wright</p>~~ <p>I want to indicate that the Australian Greens will be supporting Senator Leyonhjelm's amendments in relation to the delayed notification search warrant regime. This regime really is unprecedented in many ways in that it allows someone's premises to be searched and that they would be unaware of the basis and authority for the search, and they would be unable to challenge or make a complaint about the issue of a warrant to allow it, or about the method of execution. In fact, they may not even become aware of the fact that someone has been in their premises for up to six months. Perhaps even more alarming—police would be allowed to enter premises by the premises of a third party to whom no concern or interest attaches at all, except that their premises are attached to the premises to be searched.</p> <p>In scrutinising these sorts of provisions I am always conscious of taking the frame that, while we need to ensure that we can be protected from people who have malicious intent, and as careful as processes might be, we cannot assume that the person whose premises are searched is always the right person—that there is always, in fact, a legitimate reason to search those premises. So I am always conscious about how this will impact on people who happen to be caught up in a regime which is so intrusive. The Australian Greens will support Senator Leyonhjelm's amendments because they aim to ensure that someone who discloses information about a delayed notification search warrant as a matter of public interest, or who is a whistleblower, is not caught by criminal offences that prohibit disclosure of the search information in the bill. I am also satisfied that it is appropriate to have a sunset clause to the regime that is consistent with sunset clauses for other aspects of the bill, where we have such unprecedented and intrusive incursions into the liberties of people living in Australia.</p> ~~<p>The CHAIRMAN: The question is that amendment (1) on sheet 7597 be agreed to.</p>~~

Change

Division

senate vote 2014-10-28#5

Edited by mackay staff

on 2014-10-30 07:45:26

Title

~~Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 - In Committee - No extra defences to unauthorise disclosure offence~~
Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 - In Committee - Add extra defences to unauthorise disclosure offence

Description

senate vote 2014-10-28#5

Edited by Henare Degan

on 2014-10-30 07:21:35

Title

Description

The majority were against including two more defences to the [unauthorised disclosure offence](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034). The two defences would have been that the disclosures were:
1. *made reasonably and in [good faith](http://en.wikipedia.org/wiki/Good_faith), and in the [public interest](http://en.wikipedia.org/wiki/Public_interest)*
2. *concerned [corruption](http://en.wikipedia.org/wiki/Corruption) or [misconduct](http://en.wikipedia.org/wiki/Misconduct) in relation to the issuing or execution of a [delayed notification search warrant](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034) (DNSW)*
Liberal Democratic Party Senator [David Leyonhjelm](https://theyvoteforyou.org.au/people/senate/nsw/david_leyonhjelm) had [proposed](http://www.openaustralia.org/senate/?gid=2014-10-28.186.1) to include these two exceptions.
###Offence for unauthorised disclosure
A person commits the [offence for unauthorised disclosure](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034) if they disclose information that relates to a [delayed notification search warrant](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034) (DNSW) (maximum sentence is two years jail). The DNSW scheme will let the [Australian Federal Police](http://en.wikipedia.org/wiki/Australian_Federal_Police) (AFP) do searches without letting the owner or occupier know until later.
###Background to the bill
A number of incidents happened before and after this bill's introduction. There was [one of the biggest counter-terrorism operations](http://www.abc.net.au/news/2014-09-18/authorities-thwart-beheading-plot-in-australias-biggest-raid/5754276) in Australian history. The Prime Minister [Tony Abbott](https://theyvoteforyou.org.au/people/representatives/warringah/tony_abbott) also confirmed that Australia would be [sending the military to Iraq](http://www.abc.net.au/news/2014-10-15/special-forces-could-move-into-iraq-within-days-abbott/5815534) to fight the [Islamic State](http://en.wikipedia.org/wiki/Islamic_State_of_Iraq_and_the_Levant) (IS) (also known as the Islamic State of Iraq and Syria (ISIS) or the Islamic State of Iraq and the Levant (ISIL)).
Two particularly significant incidents were when:
* Australian teenager [Abdullah Elmir](http://www.abc.net.au/news/2014-10-21/australian-is-fighter-threatens-tony-abbott-in-video/5830040) threatened Prime Minister Tony Abbott in an IS video;
* Canadian gunman [Michael Zehaf-Bibeau](http://www.abc.net.au/news/2014-10-23/canadian-parliament-in-lockdown-after-gunman-shoots-soldier/5834692) attacked the Canadian Parliament.
Read the [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034) for more information about the bill.

senate vote 2014-10-28#5

Edited by Henare Degan

on 2014-10-30 07:21:03

Title

Description

The majority were against including two more defences to the [unauthorised disclosure offence](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034). The two defences would have been that the disclosures were:
1. *made reasonably and in [good faith](http://en.wikipedia.org/wiki/Good_faith), and in the [public interest](http://en.wikipedia.org/wiki/Public_interest)*
2. *concerned [corruption](http://en.wikipedia.org/wiki/Corruption) or [misconduct](http://en.wikipedia.org/wiki/Misconduct) in relation to the issuing or execution of a [delayed notification search warrant](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034) (DNSW)*
Liberal Democratic Party Senator [David Leyonhjelm](https://theyvoteforyou.org.au/people/senate/nsw/david_leyonhjelm) had [proposed](http://www.openaustralia.org/senate/?gid=2014-10-28.186.1) to include these two exceptions.
###Offence for unauthorised disclosure
A person commits the [offence for unauthorised disclosure](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034) if they disclose information that relates to a [delayed notification search warrant](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034) (DNSW) (maximum sentence is two years jail). The DNSW scheme will let the [Australian Federal Police](http://en.wikipedia.org/wiki/Australian_Federal_Police) (AFP) do searches without letting the owner or occupier know until later.
###Background to the bill
A number of incidents happened before and after this bill's introduction. There was [one of the biggest counter-terrorism operations](http://www.abc.net.au/news/2014-09-18/authorities-thwart-beheading-plot-in-australias-biggest-raid/5754276) in Australian history. The Prime Minister [Tony Abbott](https://theyvoteforyou.org.au/people/representatives/warringah/tony_abbott) also confirmed that Australia would be [sending the military to Iraq](http://www.abc.net.au/news/2014-10-15/special-forces-could-move-into-iraq-within-days-abbott/5815534) to fight the [Islamic State](http://en.wikipedia.org/wiki/Islamic_State_of_Iraq_and_the_Levant) (IS) (also known as the Islamic State of Iraq and Syria (ISIS) or the Islamic State of Iraq and the Levant (ISIL)).
Two particularly significant incidents were when:
* Australian teenager [Abdullah Elmir](http://www.abc.net.au/news/2014-10-21/australian-is-fighter-threatens-tony-abbott-in-video/5830040) threatened Prime Minister Tony Abbott in an IS video;
* Canadian gunman [Michael Zehaf-Bibeau](http://www.abc.net.au/news/2014-10-23/canadian-parliament-in-lockdown-after-gunman-shoots-soldier/5834692) attacked the Canadian Parliament.
Read the [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034) for more information about the bill.

senate vote 2014-10-28#5

Edited by mackay staff

on 2014-10-29 20:55:39

Title

Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 - In Committee - David Leyonhjelm amendment 1
Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 - In Committee - No extra defences to unauthorise disclosure offence

Description

This vote was to decide if [David Leyonhjelm](https://theyvoteforyou.org.au/people/senate/nsw/david_leyonhjelm)’s first amendment should be part of this bill.
The majority were against including two more defences to the [unauthorised disclosure offence](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034). The two defences would have been that the disclosures were:
1. *made reasonably and in [good faith](http://en.wikipedia.org/wiki/Good_faith), and in the [public interest](http://en.wikipedia.org/wiki/Public_interest)*
2. *concerned [corruption](http://en.wikipedia.org/wiki/Corruption) or [misconduct](http://en.wikipedia.org/wiki/Misconduct) in relation to the issuing or execution of a [delayed notification search warrant](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034) (DNSW)*
Leyonhjelm [summarised the amendment](http://www.openaustralia.org/senate/?id=2014-10-28.153.1#g186.1) as:
Liberal Democratic Party Senator [David Leyonhjelm](https://theyvoteforyou.org.au/people/senate/nsw/david_leyonhjelm) had [proposed](http://www.openaustralia.org/senate/?gid=2014-10-28.186.1) to include these two exceptions.
> Very simply, this amendment ensures that the public interest defence, and also the conduct or misconduct defence, are in the bill and not in the explanatory memorandum. The significance of this is quite simply that the explanatory memorandum is not referred to unless the bill is poorly drafted—unless the meaning is unclear. The explanatory memorandum is not the law. The law is what is in the bill. It does not help to go adding things to the explanatory memorandum, except in cases where the law is not clear. The law is clear. Therefore, the public interest defence for a disclosure of delayed notification, or instances of corruption or misconduct, will not be available to defendants as a defence under normal circumstances. Indeed, it would only be available to defendants under circumstances where the court felt that the bill had not been drafted sufficiently accurately. Therefore, it is important that it be in the bill and not left to the explanatory memorandum.
###Offence for unauthorised disclosure
~~Also see the vote over [David Leyonhjelm’s *second amendment* to the bill](https://theyvoteforyou.org.au/divisions/senate/2014-10-28/6).~~
A person commits the [offence for unauthorised disclosure](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034) if they disclose information that relates to a [delayed notification search warrant](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034) (DNSW) (maximum sentence is two years jail). The DNSW scheme will let the [Australian Federal Police](http://en.wikipedia.org/wiki/Australian_Federal_Police) (AFP) do searches without letting the owner or occupier know until later.
###Background to the bill
A number of incidents happened before and after this bill's introduction. There was [one of the biggest counter-terrorism operations](http://www.abc.net.au/news/2014-09-18/authorities-thwart-beheading-plot-in-australias-biggest-raid/5754276) in Australian history. The Prime Minister [Tony Abbott](https://theyvoteforyou.org.au/people/representatives/warringah/tony_abbott) also confirmed that Australia would be [sending the military to Iraq](http://www.abc.net.au/news/2014-10-15/special-forces-could-move-into-iraq-within-days-abbott/5815534) to fight the [Islamic State](http://en.wikipedia.org/wiki/Islamic_State_of_Iraq_and_the_Levant) (IS) (also known as the Islamic State of Iraq and Syria (ISIS) or the Islamic State of Iraq and the Levant (ISIL)).
Two particularly significant incidents were when:
* Australian teenager [Abdullah Elmir](http://www.abc.net.au/news/2014-10-21/australian-is-fighter-threatens-tony-abbott-in-video/5830040) threatened Prime Minister Tony Abbott in an IS video;
* Canadian gunman [Michael Zehaf-Bibeau](http://www.abc.net.au/news/2014-10-23/canadian-parliament-in-lockdown-after-gunman-shoots-soldier/5834692) attacked the Canadian Parliament.
Read the [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034) for more information about the bill.

senate vote 2014-10-28#5

Edited by Luke Bacon

on 2014-10-29 13:37:15

Title

Description

This vote was to decide if [David Leyonhjelm](https://theyvoteforyou.org.au/people/senate/nsw/david_leyonhjelm)’s first amendment should be part of this bill.
Leyonhjelm [summarised the amendment](http://www.openaustralia.org/senate/?id=2014-10-28.153.1#g186.1) as:
> Very simply, this amendment ensures that the public interest defence, and also the conduct or misconduct defence, are in the bill and not in the explanatory memorandum. The significance of this is quite simply that the explanatory memorandum is not referred to unless the bill is poorly drafted—unless the meaning is unclear. The explanatory memorandum is not the law. The law is what is in the bill. It does not help to go adding things to the explanatory memorandum, except in cases where the law is not clear. The law is clear. Therefore, the public interest defence for a disclosure of delayed notification, or instances of corruption or misconduct, will not be available to defendants as a defence under normal circumstances. Indeed, it would only be available to defendants under circumstances where the court felt that the bill had not been drafted sufficiently accurately. Therefore, it is important that it be in the bill and not left to the explanatory memorandum.
> Very simply, this amendment ensures that the public interest defence, and also the conduct or misconduct defence, are in the bill and not in the explanatory memorandum. The significance of this is quite simply that the explanatory memorandum is not referred to unless the bill is poorly drafted—unless the meaning is unclear. The explanatory memorandum is not the law. The law is what is in the bill. It does not help to go adding things to the explanatory memorandum, except in cases where the law is not clear. The law is clear. Therefore, the public interest defence for a disclosure of delayed notification, or instances of corruption or misconduct, will not be available to defendants as a defence under normal circumstances. Indeed, it would only be available to defendants under circumstances where the court felt that the bill had not been drafted sufficiently accurately. Therefore, it is important that it be in the bill and not left to the explanatory memorandum.
Also see the vote over [David Leyonhjelm’s *second amendment* to the bill](https://theyvoteforyou.org.au/divisions/senate/2014-10-28/6).

senate vote 2014-10-28#5

Edited by Luke Bacon

on 2014-10-29 13:33:06

Title

Description

[This vote](http://www.openaustralia.org/senate/?id=2014-10-28.153.1#g186.1) was to decide if [David Leyonhjelm](https://theyvoteforyou.org.au/people/senate/nsw/david_leyonhjelm)’s first amendment should be part of this bill.
This vote was to decide if [David Leyonhjelm](https://theyvoteforyou.org.au/people/senate/nsw/david_leyonhjelm)’s first amendment should be part of this bill.
Leyonhjelm [summarised the amendment](http://www.openaustralia.org/senate/?id=2014-10-28.153.1#g186.1) as:
> Very simply, this amendment ensures that the public interest defence, and also the conduct or misconduct defence, are in the bill and not in the explanatory memorandum. The significance of this is quite simply that the explanatory memorandum is not referred to unless the bill is poorly drafted—unless the meaning is unclear. The explanatory memorandum is not the law. The law is what is in the bill. It does not help to go adding things to the explanatory memorandum, except in cases where the law is not clear. The law is clear. Therefore, the public interest defence for a disclosure of delayed notification, or instances of corruption or misconduct, will not be available to defendants as a defence under normal circumstances. Indeed, it would only be available to defendants under circumstances where the court felt that the bill had not been drafted sufficiently accurately. Therefore, it is important that it be in the bill and not left to the explanatory memorandum.

senate vote 2014-10-28#5

Edited by Luke Bacon

on 2014-10-29 13:31:56

Title

Description

~~[This vote](http://www.openaustralia.org/senate/?id=2014-10-28.153.1#g186.1) was to decide if David Leyonhjelm's first amendment should be part of this bill.~~
[This vote](http://www.openaustralia.org/senate/?id=2014-10-28.153.1#g186.1) was to decide if [David Leyonhjelm](https://theyvoteforyou.org.au/people/senate/nsw/david_leyonhjelm)’s first amendment should be part of this bill.
Leyonhjelm [summarised the amendment](http://www.openaustralia.org/senate/?id=2014-10-28.153.1#g186.1) as:
> Very simply, this amendment ensures that the public interest defence, and also the conduct or misconduct defence, are in the bill and not in the explanatory memorandum. The significance of this is quite simply that the explanatory memorandum is not referred to unless the bill is poorly drafted—unless the meaning is unclear. The explanatory memorandum is not the law. The law is what is in the bill. It does not help to go adding things to the explanatory memorandum, except in cases where the law is not clear. The law is clear. Therefore, the public interest defence for a disclosure of delayed notification, or instances of corruption or misconduct, will not be available to defendants as a defence under normal circumstances. Indeed, it would only be available to defendants under circumstances where the court felt that the bill had not been drafted sufficiently accurately. Therefore, it is important that it be in the bill and not left to the explanatory memorandum.

senate vote 2014-10-28#5

Edited by Luke Bacon

on 2014-10-29 13:31:15

Title

Description

~~[This vote](http://www.openaustralia.org/senate/?id=2014-10-28.153.1#g186.1) was to decide if David Leyonhjelm's first amendment should be part of this bill.~~
[This vote](http://www.openaustralia.org/senate/?id=2014-10-28.153.1#g186.1) was to decide if David Leyonhjelm's first amendment should be part of this bill.
Leyonhjelm [summarised the amendment](http://www.openaustralia.org/senate/?id=2014-10-28.153.1#g186.1) as:
> Very simply, this amendment ensures that the public interest defence, and also the conduct or misconduct defence, are in the bill and not in the explanatory memorandum. The significance of this is quite simply that the explanatory memorandum is not referred to unless the bill is poorly drafted—unless the meaning is unclear. The explanatory memorandum is not the law. The law is what is in the bill. It does not help to go adding things to the explanatory memorandum, except in cases where the law is not clear. The law is clear. Therefore, the public interest defence for a disclosure of delayed notification, or instances of corruption or misconduct, will not be available to defendants as a defence under normal circumstances. Indeed, it would only be available to defendants under circumstances where the court felt that the bill had not been drafted sufficiently accurately. Therefore, it is important that it be in the bill and not left to the explanatory memorandum.

senate vote 2014-10-28#5

Edited by Henare Degan

on 2014-10-29 13:23:45

Title

Bills — Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014; in Committee
Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 - In Committee - David Leyonhjelm amendment 1

Description

~~George Brandis~~
~~I move government amendment (7), on sheet ZA358:~~
~~(7) Schedule 1, page 12 (after line 10), after item 34, insert:~~
[This vote](http://www.openaustralia.org/senate/?id=2014-10-28.153.1#g186.1) was to decide if David Leyonhjelm's first amendment should be part of this bill.
~~34A At the end of section 38~~
~~  Add:~~
(7) Before the end of the following periods, the Attorney-General must consider whether to revoke a certificate certifying in accordance with paragraph (2)(a) (if the certificate remains in force):
~~  (a) 12 months after it was issued;~~
~~  (b) 12 months after the Attorney-General last considered whether to revoke it.~~
~~34B Application~~
~~  Subsection 38(7) of the Australian Security Intelligence Organisation Act 1979 applies to certificates issued on or after the commencement of that subsection.~~
Amendment (7) implements recommendation No. 28 of the PJCIS by requiring that a certificate be issued by the Attorney-General under paragraph 38(2)(a) of the ASIO Act and be reviewed within 12 months of the issuance of the certificate and then every 12 months after it has been last renewed.
The effect is to ensure annual review of certificates that would enable silent passport cancellations. This is another of the safeguards, Mr Chairman, that have been accepted by the government as prudent measures, following the PJCIS recommendations. The powers under paragraph 38(2)(a) of the ASIO Act are extraordinary powers. They are only exercised in very exceptional circumstances. But it is appropriate that a certificate issued by the Attorney-General under that provision be reviewed and only, if necessary, renewed on an annual basis.
~~Question agreed to.~~
~~by leave—I move government amendments (11) to (13) together:~~
~~(11) Schedule 1, item 51, page 20 (line 28), omit "member;", substitute "member.".~~
~~(12) Schedule 1, item 51, page 20 (lines 29 and 30), omit paragraphs 3ZZAF(1)(c) and (d).~~
~~(13) Schedule 1, item 51, page 20 (lines 32 and 33), omit "part-time senior member or a member", substitute "full-time senior member".~~
Amendments (11) to (13) implement the first recommendation of the PJCIS report by limiting the AAT members authorised to issue a delayed notification search warrant, and to perform related functions, to the deputy president and full-time senior members. But for this amendment those functions could be performed by all members of the AAT. The government is convinced and accepts the view that, given the gravity of the powers exercisable under a delayed notification search warrant, the authorisation should only be made by a relatively senior member of the judiciary, and therefore only members of the AAT who serve at the most senior tiers of that tribunal ought to be issuing authorities.
~~Question agreed to.~~
~~I move government amendment (14):~~
~~(14) Schedule 1, item 51, page 44 (line 18), omit "18", substitute "12".~~
Government amendment (14) implements PJCIS recommendation No. 2 by reducing from 18 months to 12 months the maximum period before which the occupier of premises that have been the subject of a delayed notification search warrant, or the occupier of adjoining premises, be notified. Any extension beyond 12 months would require ministerial authorisation. Once again, this is an additional safeguard or a confinement of an extraordinary power. The government is of the view that the period should in all the circumstances be foreshortened from the initial period specified in the bill to 12 months.
~~Question agreed to.~~
~~by leave—I move government amendments (15) and (16) together:~~
~~(15) Schedule 1, item 51, page 59 (after line 32), after paragraph 3ZZHA(2)(a), insert:~~
~~  (aa) the disclosure is for the purposes of obtaining or providing legal advice related to this Part;~~
~~(16) Schedule 1, item 51, page 60 (after line 13), after paragraph 3ZZHA(2)(d), insert:~~
(da) the disclosure is made by anyone to the Ombudsman, a Deputy Commonwealth Ombudsman or a member of the Ombudsman's staff (whether in connection with the exercise of powers or performance of functions under Division 7, in connection with a complaint made to the Ombudsman or in any other circumstances);
Amendments (15) and (16) implement recommendation 3 of the PJCIS report by strengthening the unauthorised disclosure of information offences. The amendments exempt disclosure in the course of obtaining or providing legal advice, and disclosure of warrant information to the ombudsman from the disclosure of offences in the bill.
~~Question agreed to.~~
~~David Leyonhjelm~~
~~I move amendment (1) on sheet 7597:~~
~~(1) Schedule 1, item 51, page 60 (line 19), at the end of subsection 3ZZHA(2), add:~~
~~  ; (g) the disclosure is made reasonably and in good faith, and in the public interest;~~
~~(h) the disclosure concerns corruption or misconduct in relation to the issuing or execution of a delayed notification search warrant.~~
Very simply, this amendment ensures that the public interest defence, and also the conduct or misconduct defence, are in the bill and not in the explanatory memorandum. The significance of this is quite simply that the explanatory memorandum is not referred to unless the bill is poorly drafted—unless the meaning is unclear. The explanatory memorandum is not the law. The law is what is in the bill. It does not help to go adding things to the explanatory memorandum, except in cases where the law is not clear. The law is clear. Therefore, the public interest defence for a disclosure of delayed notification, or instances of corruption or misconduct, will not be available to defendants as a defence under normal circumstances. Indeed, it would only be available to defendants under circumstances where the court felt that the bill had not been drafted sufficiently accurately. Therefore, it is important that it be in the bill and not left to the explanatory memorandum.
~~George Brandis~~
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.
~~Jacinta Collins~~
Labor understands the points that Senator Leyonhjelm has raised, and we understand his strongly-held views about these issues. However, we oppose this amendment, which cuts against the purpose and effectiveness of the delayed notification warrant scheme, in our view. It is worth turning to the intelligence report, which says of this scheme at 2.47:
~~According to the Explanatory Memorandum, the scheme will differ from the existing search warrant provisions so as to enable~~
~~<ul></ul>And at 2.48:~~
~~The ability to conduct a covert search is considered important because it will~~
<ul></ul><ul></ul>On this basis, though it took into account the sorts of concerns raised here by Senator Leyonhjelm, the intelligence committee decided against any such exception being inserted into the bill. A similar scheme has operated without any apparent difficulty in the Crimes Act, and we are satisfied that the general safeguards which apply to the AFP—and with the passage of this bill, the new oversight powers of the intelligence committee—that there is no need for this amendment.
~~Penny Wright~~
I want to indicate that the Australian Greens will be supporting Senator Leyonhjelm's amendments in relation to the delayed notification search warrant regime. This regime really is unprecedented in many ways in that it allows someone's premises to be searched and that they would be unaware of the basis and authority for the search, and they would be unable to challenge or make a complaint about the issue of a warrant to allow it, or about the method of execution. In fact, they may not even become aware of the fact that someone has been in their premises for up to six months. Perhaps even more alarming—police would be allowed to enter premises by the premises of a third party to whom no concern or interest attaches at all, except that their premises are attached to the premises to be searched.
In scrutinising these sorts of provisions I am always conscious of taking the frame that, while we need to ensure that we can be protected from people who have malicious intent, and as careful as processes might be, we cannot assume that the person whose premises are searched is always the right person—that there is always, in fact, a legitimate reason to search those premises. So I am always conscious about how this will impact on people who happen to be caught up in a regime which is so intrusive. The Australian Greens will support Senator Leyonhjelm's amendments because they aim to ensure that someone who discloses information about a delayed notification search warrant as a matter of public interest, or who is a whistleblower, is not caught by criminal offences that prohibit disclosure of the search information in the bill. I am also satisfied that it is appropriate to have a sunset clause to the regime that is consistent with sunset clauses for other aspects of the bill, where we have such unprecedented and intrusive incursions into the liberties of people living in Australia.
~~The CHAIRMAN: The question is that amendment (1) on sheet 7597 be agreed to.~~