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

Firstly, I seek clarification from the Democrats, through you, Temporary Chairman Forshaw. Do these amendments seek to take away the civil penalty regime as the second order? Perhaps the best way of describing it is that in the Telecommunications (Interception) Act there are two levels. The first is for the serious offences and then, for the subsequent use of the material, there is the second. For stored communication, they have sought to emulate that by having a three-year penalty and a one-year penalty. In that instance, it would be the one-year penalty that you are seeking to restrict. The committee report indicated that it should not be extended to the agencies, outside of law enforcement agencies, and that the threshold should be maintained in the criminal regime. If the amendments are consistent with that, and I think they are, then Labor is happy to agree with them. If they go further than that then we would not accept them. I see you shaking your head, Senator Stott Despoja. On that basis, if they seek to do that, we would at least offer our support, because they would be consistent with our amendments earlier—and some we may not have got to yet—and with the committee report.

The difficulty we face with this new regime—both with stored communications and the subsequent area, although I will deal with just stored communications here—is that the evidence to the committee from a range of submitters about how agencies would use it was highlighted by the evidence of ASIC. I think ASIC blew the government’s position out of the water, because they had been using notices to produce improperly—perhaps that is too strong a word—or at least not in a way that they were intended to be used or to operate. That highlighted to me that, if ASIC were typical of the agencies that would use this power, I am not sure that agencies are ready for it at this point in time. They may be. Perhaps subsequently, as part of the review process, they can put up a better case as to how they would ensure that they used it appropriately and only in appropriate circumstances and that it was utilised effectively as a tool in their investigations and in their ability to fight the regulatory offences and the types of issues that they meet. But, at this juncture, and having a look at the evidence, I am not convinced—and neither were the committee or government and Labor backbenchers—that this power should be extended.

As I understand it, that is what these amendments seek to ensure. They do so in a slightly different way, but it is one that I do not think the government is going to support. That is a pity. It would ensure that, in this instance, stored communications would have a regime in place that law enforcement agencies could use to effect appropriate outcomes, and the warrant regime, which the government was so keen to protect, would continue and the agencies could utilise the warrant regime that they have been utilising. They could utilise their notices to produce without impediment. ASIC indicated that they have not used this power in any event for the last 12 months, so I do not think there is a great need for it. It was certainly not demonstrated to the committee.