Thursday, 26 March 2015
Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015; In Committee
I do not want to prolong the debate—and I expected Senator Ludlam to say what he had to say; he has his view and I have mine—but I just wanted to add to my remarks to Senator Xenophon. It has been pointed out to me that not only in a practical sense would ASIO never seek a special intelligence operation authorisation where all it needed was a search warrant, it actually cannot.
The jurisdiction under section 35C and 35D are the relevant provisions of the ASIO Act. The jurisdiction to grant approval to a special intelligence operation is only exercisable in circumstances where there would otherwise but for the authorisation be a breach of the civil or criminal law. That is a not uncommon provision in relation to covert operations. For example, if an officer engages covertly, pretending to be a member of a terrorist cell, for argument's sake, he could find himself engaged in conduct which might constitute the offence of preparation for a terrorist act—playing along, as it were, with the cell that he was trying to penetrate. These are matters of fine operational judgement. But the point I am making to you, Senator Xenophon, is that because a special intelligence operation can be authorised under section 35C of the ASIO Act only in circumstances involving conduct that would otherwise breach the criminal or civil law, it could not—it actually is a matter of law, not just practicality—overlap with a search warrant application, because of course to execute a search warrant is not a breach of the criminal or the civil law.