Thursday, 30 March 2006
Telecommunications (Interception) Amendment Bill 2006
We do have oversight by the Ombudsman, and of course we have the judicial system itself. There are two sorts of people we are talking about: the person who is under investigation, and the B party. The person under investigation gets evidence that is going to be produced at trial given to them in the depositions prior to trial. They know the process that is being conducted. They have an ability to challenge that in the pretrial process. If a B party was involved in evidence which was used in court, they could then have a remedy available to them if that reflected on them adversely or in some way affected them.
But if it was not produced and it was never used and there was no adverse impact for the B party then I would ask Senator Stott Despoja where any basis could lie for them taking action. The question has to be premised on the basis that there has been a wrong committed to the person concerned. If the person is under investigation, they can raise it all as part of the pretrial process. If it is a third party which has been dealt with improperly then you would know about it because it would be dealt with in the court itself. Action would have to be taken.
If there was a warrant executed which involved a B party and nothing was ever done in relation to the information concerning the B party, where would the harm be to the B party? You would have harm only if there were some action taken or they were prejudiced in some fashion. There would be a possibility of that occurring if you were to have proceedings in a court and that was all brought out. But, otherwise, it would never be acted upon. It could remain something which was of no consequence.
I fail to see where the action that Senator Stott Despoja is thinking of is. Is there some action in tort for defamation, say, or libel? Someone would have to say something about the B party. Is there some prejudice, some discrimination under the Racial Discrimination Act, where action was taken because of the B party’s comments? They would have to be actions consequential on the information obtained. Unless it were brought up in the courts, the B party concerned would not have any knowledge of the intercept. But, then again, the harm that is being complained of or suggested by Senator Stott Despoja would be hard to imagine unless it were acted upon. Then there would be some demonstration of that harm by an overt act.