Thursday, 30 March 2006
Telecommunications (Interception) Amendment Bill 2006
Even if the government and the minister cannot stomach amendment (10), which deals with the issue of admissibility, and even if the government says, ‘No, we cannot cope with the idea of legal professional privilege or information that is subject to not being admissible,’ surely they cannot argue that amendment (4) is scary or that it is going to have an impact—judicial or otherwise—when there is a list of the matters to which the issuing authority must have regard. They are listed in the bill, and they are things like: how much the privacy of any person or persons would be likely to be interfered with by accessing those stored communications under a stored communications warrant; the gravity of the conduct constituting a serious contravention; how much information would assist in connection with the investigation; to what extent methods of investigating the serious contravention that do not involve the use of a stored communications warrant have been used et cetera; how much the use of such methods would be likely to assist in connection with the investigation by the agency—and the list goes on.
To add to that an amendment about whether the stored communication is likely to include information which is subject to legal professional privilege is just something for the issuing authority to have regard to and to include in this gladbag of issues that the issuing authority must already have regard to. It is not saying, ‘Have regard to it and it is all going to be inadmissible in court.’
In conjunction with amendment (10), there are issues there. But they should have regard to whether or not legal professional privilege is going to be covered—in the same way that the first point in that list of matters includes the issue of privacy. Amendment (4) is not a scary amendment. It does not offer, in isolation, the strength of protection that I would like to offer lawyers and clients. I just do not see why that cannot be listed under that particular section. You have got (a) to (f) already. It is simple to add (g), which says, ‘The issuing authority must have regard’. It is essentially to consider legal professional privilege—whether the stored communication is likely to include information which is subject to legal professional privilege. It is not binding in a way that is nerve-racking or in a way that means the warrant cannot be issued.
I just do not see why this is not a good amendment in the interests of public policy for this government. I would be happy to separate amendments (4) and (10) if that were required; obviously (3) is the technical amendment that adds ‘and’ so that you can get (g). But I do not understand the government’s rationale regarding this particular amendment, even if I can understand the so-called logic in getting rid of amendment (10).
Through the chair to Senator Ludwig: I thank the Labor Party for their support on the amendments that they have indicated they will be supporting. I recognise that they will not be supporting the high threshold. I understand the consistency in that argument.