Thursday, 30 March 2006
Telecommunications (Interception) Amendment Bill 2006
At the outset I want to reject what Senator Ludwig said in relation to the Attorney-General. The Attorney-General has considered the report by the Senate Legal and Constitutional Committee very carefully. That is evidenced by the fact that a number of recommendations have been accepted and put forward as amendments. Indeed, out of the 28 recommendations, as I understand it, a total of 11 are reflected in the bill either by way of taking up a recommendation or having already been there, and they have been clarified for the committee.
In addition to that, the Attorney-General said, ‘We’ll continue to consider the recommendations of the Senate Legal and Constitutional Committee and if necessary bring back further amendments in the spring sittings of parliament.’ That is the indication of someone who has taken careful consideration of the committee report, not someone who has not read it or treated it in a somewhat dismissive fashion. The Attorney-General has had close regard to this matter, as have the department, who have been working since the report was delivered on how we can address the situation. I totally reject Senate Ludwig’s comments. I think it detracts from the debate to sink to making those points.
In relation to this question, if we bring in one aspect of legal professional privilege, why not bring in what Senator Brown was talking about—parliamentary privilege? Why not bring in judges and others? Where do you stop? The fact is that the law of Australia has accommodated this very well. I mentioned the case of Carmody and MacKellar. That decision stood for the principle that it would frustrate legislative purpose if warrants could not be relied on to intercept a particular category of communications that are incapable of identification either before or at the time of the interception because you would be pre-empting a decision of a court. It is proper for the court to make that decision when evidence is brought before it. If you were told before you went that you could not pick up various aspects of information because they were barred, that would then hamper law enforcement significantly in the exercise or execution of warrants.
It is best have a strict regime for the issuing of those warrants. Law enforcement executes them according to law, and then it is for the courts to decide what evidence is admissible. That is the principle of Carmody and MacKellar, which was a decision of the full court of the Federal Court. It is not just a whim of the government that we do not accept this. We are standing by a principle which has been enunciated at the level of the full court of the Federal Court and which, what is more, practice has shown to be a good one. The government opposes these amendments for those reasons.