David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Hansard source

In response to Senator Stott Despoja of the Democrats and Senator Nettle of the Greens, the government obviously does not agree with this amendment, as it is unnecessary, based, if I may be so bold, on an incorrect understanding of the provisions, and is likely to be confusing in the future. I emphasise that these are not new powers, notwithstanding media reports—the Sydney Morning Herald springs to mind—which clearly disclose a total lack of understanding and an inability to digest and comprehend what this bill does. It is a bit sad, really, that such an important issue can be so misconstrued and misunderstood by journalists.

Telecommunications data has been available to law enforcement and ASIO since 1975. Advances in technology have meant that telecommunications data has become more detailed and the data can be provided in less time than in the past. In response to these new capabilities, the bill introduces new provisions which, for the first time, explicitly regulate the technological change that has occurred. The distinction between prospective data and historical data has not been created to allow access to a new class of data. It is a response to the privacy implications that have arisen out of the existing legal regime. It places new limits on access as well as new reporting requirements.

The regime to enable criminal law enforcement agencies to access prospective data is already based on the equivalent surveillance device warrant. Under the Surveillance Devices Act 2004, an appropriate authorising officer as defined and set out in that act may authorise the use of a tracking device without a warrant in instances where it will not involve any interference with the property of a person, as set out in section 39. A warrant is only necessary where covert entry to premises or a vehicle is required. Prospective data authorisations have similar requirements to these surveillance device authorisations with the express purpose of ensuring that the integrity of the surveillance device regime is maintained. I set this out because there is a degree of hysteria and misunderstanding surrounding what we are actually doing here. I can only repeat: these are not new powers.