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

by leave—I move:

(2)    Schedule 1, page 4 (line 2) to page 61 (line 11), omit “enforcement agency” (wherever occurring), substitute “interception agency”.

(3)   Schedule 1, item 2, page 4 (line 18), before “law”, insert “criminal”.

We also oppose schedule 1 in the following terms:

(12)  Schedule 1, item 36, page 48 (lines 5 to 9), TO BE OPPOSED.

The debate on this revolves around the same issue. If you look at recommendations (2), (3) and (5) of the Senate Legal and Constitutional Legislation Committee, I think they are germane to the particular issue. Unlike Senator Bob Brown’s amendment, these amendments are designed to progress the committee report and achieve a better outcome for the safeguards that Labor is here to protect. Senator Brown’s amendment was quite a spray, quite frankly. I was not going to answer much of it because I took for what it was: simply a stunt.

The committee believed that access to stored communication warrants should not be available to all agencies, as is spelt out in the legislation, because in that instance the extension strikes the wrong balance between individual privacy and effective law enforcement. The committee and Labor argue that at this point in the program, given the long history of this, stored communication should remain with law enforcement agencies.

Senator Brown would not have heard the argument from ASIC—the Australian Securities and Investments Commission. Apparently he does not want to. They wanted to use stored communication warrants for notices to produce. I think that argument should be expelled. It has the wrong emphasis. What they were arguing for during that part was that you could use covert—although they took exception to that word, I must say—stored communication warrants as notices to produce. I just do not think that is acceptable. When you look at their practices, you see that they had been using notices to produce to access stored communication—that is, SMSs and emails. They had not utilised a covert notice to produce in the last 12 months. It is not a power that would add to their array of law enforcement or civil enforcement activities in the area of their work. Therefore, to me and to the committee, it seems to be an unnecessary extension at this time.

Of course, the key distinction that we have to focus on is between covert and overt searches. The principal test should be the impact on individual privacy. The bill would result in a significant number of government agencies being able to covertly obtain material and, further, the proposed system would allow access to stored communication warrants for a range of sometimes relatively minor offences. So a wider range of agencies—those outside what we would regard as the law enforcement agencies: the AFP, the ACC and ASIO—would have the ability to utilise covert access to stored communication. We think that goes too far. It was not sufficiently justified by the agencies or by the submissions by the Attorney-General’s Department. I do not think the need for it was well argued by them.

The information that they seek to obtain from emails can be obtained from notices to produce, ordinary search warrants and the like for agencies. I think the agencies were just throwing their hat in to see if they could gain a covert power. It was not and is not necessary. These amendments will give effect to ensuring that that power is not in the legislation. It was for a range of otherwise minor offences which could be civil in nature, and therefore you would expect that, if they wanted to obtain and enforce that, they could do it in the ordinary way. They can use notices to produce and search warrants to obtain the evidence in that way and enforce the civil proceedings in the usual manner without covert access to stored communication at an internet service provider.

The view of the committee was that the invasion of privacy did not warrant an extension beyond core law enforcement agencies. Stored communication warrants should be limited to criminal offences. I think that provides the right balance. As I have said, other agencies can continue to use notices to produce. From the evidence given to the committee, there was not an apparent diminution of their ability to use the legislation to deal with their enforcement activities.