Senate debates

Thursday, 30 March 2006

Telecommunications (Interception) Amendment Bill 2006

In Committee

Consideration resumed from 29 March.

Photo of John HoggJohn Hogg (Queensland, Deputy-President) Share this | | Hansard source

The committee is considering the Telecommunications (Interception) Amendment Bill 2006, as amended, and government amendments (9), (10) and (11) on sheet PA337 moved by Senator Ellison.

9:31 am

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

It might be worth a short recap of where we have got to in relation to the Telecommunications (Interception) Amendment Bill 2006. This process has stretched over a couple of days because the program, unfortunately, has unravelled through the week. We are progressing through the amendments to the Telecommunications (Interception) Amendment Bill 2006 and are now dealing with a range of government amendments to what is ordinarily referred to as the TI bill.

One of the problems with the government amendments is that the Attorney-General in truth has been lazy in looking at the committee recommendations. The committee provided its report on Monday and that committee report put forward a range of recommendations. The Attorney-General came back with a number of amendments, a few of them addressing the committee’s recommendations. Some of the government’s amendments do not even address the committee’s recommendations but are other amendments and additions. The work of the committee in providing those recommendations did not in truth get substantive attention from the Attorney-General and, as a consequence, the privacy protections that could have been afforded during this debate and agreed to by the government have not been picked up. That is a disappointment for the opposition, but it is a greater disappointment to people in the community who expect this government to ensure that the legislation does have adequate safeguards attached and, given the type of bill this is, that those safeguards do strike the right balance between the privacy concerns of persons while enabling law enforcement agencies to get on and do their work.

As for the amendments that are being addressed, Labor have indicated that we will support them. They deal in part with the Spam Act, and that is probably a good example which came to light during the committee work. It does underscore the committee work. A submitter came along from another government agency and said, ‘By the way, if you proceed with this legislation, it may impact upon our ability to stop spam.’ It becomes a bit by pythonesque—and some old enough to recall know what I mean. You could then be in the difficult position where the Spam Act might be prevented from stopping spam, which is a completely unacceptable position.

So Labor has indicated that it will support these amendments. It is another demonstration of how sloppy the work of government has been in providing this bill to the parliament. It is not because of the Parliamentary Counsel—they obviously do their work. The real work has to be done by the Attorney-General’s Department in consultation with their agencies and their own departments, listening to submitters and then reviewing the submitters’ work, and finalising all that and bringing forward a bill after consideration by the Attorney-General. This would then take up a lot of the concerns. It is fortunate that in this instance at least the Attorney-General has picked up a submitter’s point that there would be a problem if this was not addressed in the legislation.

It does beg the question whether this legislation might have other unintended consequences, but time will tell. The answer that the Attorney-General has provided in respect of that is that they will continue to review it. That is not really good enough. We are here now debating a bill that will pass today, I suspect. The government do have the numbers and they will ensure that it passes today. It is not good enough to have such a truncated process. But as Labor have indicated during the last couple of days, we are doing our best to ensure that there are sufficient privacy protections and that the government continues to have the opportunity to pick up those privacy protections and put them in the bill.

9:37 am

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

I will briefly outline some of the concerns that the Democrats have with the amendments moved by the government last night, particularly amendment (10), which is in effect, by our understanding, a lowering of the threshold for the ACMA members. I understand that these amendments are being dealt with in a block, so I indicate that amendments (10) and (11) are of concern to the Australian Democrats. Amendment (9), being a technical amendment, is not such an issue.

Question agreed to.

Photo of Guy BarnettGuy Barnett (Tasmania, Liberal Party) Share this | | Hansard source

Does the minister wish to return to government amendments (7) and (8), which were deferred last night?

9:38 am

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

I do. The committee will recall that yesterday we were talking about the amendment to clause 108, ‘Stored communications not to be accessed’. I have moved these government amendments, so I will not do so again, but I will explain to the committee how the wording works.

On the face of it, Senator Stott Despoja’s concern had some weight, and we deferred it. Senator Ludwig and I also looked at it and thought it did not look quite right, but when you look at it in context it does work and the wording is appropriate. Subclause 108(1) states:

A person commits an offence if:

(a)
the person:
(i)
accesses a stored communication; or
(ii)
authorises, suffers or permits another person to access a stored communication; or
(iii)
does any act or thing that will enable the person or another person to access a stored communication; and
(b)
the person does so without the knowledge of the intended recipient of the stored communication.

The first part of that section says a person commits an offence if that person accesses a stored communication. The second part is a requirement that the person did so without the knowledge of the intended recipient. We have expanded that. We are saying that the second element of the offence, if you like, is:

(b)
the person does so with the knowledge of neither of the following:
(i)
the intended recipient of the stored communication;
(ii)
the person who sent the stored communication.

So we have expanded it to both parties—the person who receives the stored communication and the person who sent it. When you read that altogether, it says:

A person commits an offence if:

(a)
the person:
(i)
accesses a stored communication; or
(ii)
authorises, suffers or permits another person to access a stored communication; or
(iii)
does any act or thing that will enable the person or another person to access a stored communication; and—

and this is the amendment—

(b)
the person does so with the knowledge of neither of the following:
(i)
the intended recipient of the stored communication;
(ii)
the person who sent the stored communication.

When you look at that, the offence is that you are accessing it with the knowledge of neither. ‘Without the knowledge of either of the following,’ is another way of saying it, but ‘with the knowledge of neither of the following’ makes sense. It is appropriate wording and I think it achieves a much better situation, because it requires both parties to be included—the recipient and the person who sent the stored communication. I commend government amendments (7) and (8) to the committee with that clarification.

9:41 am

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

I thank the minister for that clarification. That was precisely my point. You just said the sender ‘and’ the intended recipient. I draw the committee’s attention to the supplementary explanatory memorandum that was circulated on behalf of the government to accompany their additional government amendments. It reads:

Amendment 7 amends item 9 at Part 1 of Schedule 1 to amend the general prohibition against access to stored communication in clause 108 of the Bill. The effect of the amendments is to enable law enforcement agencies to access stored communications with the knowledge of the sender or intended recipient.

The reason I first drew the attention of the committee to the issue last night was that my reading of the amendment was that you would need both the sender and the intended recipient to know if you were to use the following terminology:

(b)
the person does so with the knowledge of neither of the following:
(i)
the intended recipient of the stored communication;
(ii)
the person who sent the stored communication.

The government’s explanatory memorandum wants ‘or’. My reading—and I thought so last night when colleagues looked at it too—was that the amendment, by use of the word ‘neither’, would mean ‘and’. That sounds like an added protection to me, so I probably should not have drawn it to the attention of the committee as it would probably have resulted in legislation that meant you had to have the knowledge of both, but I wonder whether the minister can see the point that I am making—that the explanatory memorandum is hoping for ‘or’ but my interpretation of how ‘neither’ works is that you get both. Minister, in your last comment you said the knowledge of the sender ‘and’ the intended recipient, and that means both.

9:44 am

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

To clarify that absolutely, it is an offence if the person does so without the knowledge of ‘neither of the following’. That means one of the following, not both. If I gave the impression that both were required then that is incorrect. It is ‘neither of the following’. In fact, I inquired as to why you would not put an ‘or’ after ‘stored communication’. The advice I got was that that in fact would have the reverse effect. You would then have a cumulative effect in exactly the way that Senator Stott Despoja has just made out—that is, it would be an offence to do so without the knowledge of both. We are saying that as long as you have the knowledge of one of them you are right, and that is it. The way it is drafted, on the advice I have, achieves that. That is the advice I have and that is what it means.

9:45 am

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

I thank the minister for that clarification. I thought he had used ‘and’ in his comment. I do understand the intent of the amendment—that is not the issue. I am just wondering if down the track it can be interpreted in a different way—in a way that does have a cumulative effect. Obviously, the government is satisfied with the drafting and the effect of the amendment in its current form. But I still think that the fact that we have puzzled over it since yesterday evening probably indicates it is not as clear as perhaps would have been hoped.

9:46 am

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

I did not particularly want to buy into it, but I do understand what the minister is saying. It is perhaps sloppy drafting at the end of the day. Quite frankly, a bit more time would probably have seen it clarified a bit better in the drafting of the word ‘neither’. What we are trying to protect are 3L search warrants, effectively, and other notices to produce where notice is served on the intended target—the computer or the stored communication or the emails. In that instance they will not get caught by this provision, because they will have the knowledge of the person who might be the recipient of the email. They will then have that person’s computer or SMS and they will be able to use an ordinary search warrant for that.

The point of differentiation between covert and overt is that it is overt. The person who has the computer, as I understand it, would have the emails, and the 3L search warrant would then be effective and not defective under the provision as it stood. I think that demonstrates the difficulty sometimes with this area. It is a very complex area. It does need clarifications, and people will now have to come to look at these debates to see what was intended. In my view that is not good enough. If the amendment moved by the government was not put forward the 3L search warrant would not have been able to be used in those circumstances, as I understand it. If I have that wrong then perhaps I need to be corrected too. My understanding is that the use of the covert for operation of the stored communication regime where a warrant would be required is for where neither the intended recipient nor the sender would have knowledge of the ISP when the warrant was required. That probably adds very little to the conversation that we have just had. Labor will support the amendment if it has the effect that the minister has indicated.

Photo of Guy BarnettGuy Barnett (Tasmania, Liberal Party) Share this | | Hansard source

The question is that government amendments (7) and (8) be agreed to.

Question agreed to.

9:49 am

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

I move the amendment standing in my name on behalf of the Australian Democrats:

(2)    Schedule 1, item 9, page 12 (after line 24), after subsection 113(2), insert:

     (2A)    Without limiting subsection (2), the affidavit shall set out:

             (a)    the name or names by which the person is known; and

             (b)    details (to the extent these are known to the chief officer) sufficient to identify the telecommunications and stored communications services the person is using, or is likely to use; and

             (c)    the number of previous applications (if any) for warrants that the agency has made and that related to the person or to a service that the person has used; and

             (d)    the number of warrants (if any) previously issued on such applications; and

             (e)    the date on which such warrants (if any) were issued; and

              (f)    particulars of the use made by the agency of information obtained by access under such warrants.

This amendment requires that an agency, when applying for a stored communications warrant, include more detail and specific information in the affidavit sworn by the agency. The information required is standard and not unreasonable to expect considering the privacy breaches that can, do and no doubt will occur through a stored communication warrant. We believe that the section which deals with warrant applications in the amendments, 113(3), is far too broad and so requires this specification. It does not give the issuing authority enough relevant information on which to base the decision of whether or not to issue a warrant. In particular, it provides information on when the last warrant was issued, which gives practical effect to section 119(5), which requires that further warrants not be issued if a warrant has been issued within the last three days. We are hoping for specificity in terms of more information. That is a not unreasonable protection to put into the legislation. Obviously, it is something that was discussed and canvassed by the committee in its deliberations.

9:50 am

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

We were obviously looking at the same song sheet when we wrote these, Senator Stott Despoja; it is similar to the next amendment by Labor. It is from recommendation 4. Principally, it is a clarification to ensure a stored communication warrant adequately and clearly identifies the subject of the warrant and the telecommunications service for which it is sought.

Labor would probably oppose the Democrats amendment on the basis that we would prefer ours. But, if the government indicates that it is not going to support yours or ours then we are happy to support yours and watch ours go down as well. Be that as it may, we understand that we are all—at least the Democrats and Labor—seeking a tightening of the warrant identification of the subject and the service. We think it is an improvement to the proposed regime in this bill. We think it will provide adequate protections. On the basis of the principle we will offer support to the Democrats in this instance.

9:52 am

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

Clause 118 sets out:

(1)
A stored communications warrant:
(a)
must be in accordance with the prescribed form; and
(b)
must be signed by the issuing authority who issues it.

It goes on to say:

(2)
A stored communications warrant may specify conditions or restrictions relating to accessing stored communications ...

It further states:

(3)
A stored communications warrant must set out short particulars of each serious contravention in relation to which the issuing authority issuing the warrant was satisfied, on the application for the warrant ...

We are saying that that is best left to prescription of the form, and we believe that the prescribed form will include additional information, which is sought by the Democrats in this amendment. We believe that in relation to the affidavit, which is clause 113, it is sufficiently covered. Clause 113 states:

(1)
The application must, if it is in writing, be accompanied by an affidavit—

that is straightforward—

(2)
The affidavit must set out the facts and other grounds on which the application is based.

It also says:

... a written application may be accompanied by 2 or more affidavits that together set out each matter ...

We believe it is appropriate to set it out in that fashion. The prescribed form, which can be done by way of regulations, can then deal with the further information that can be covered. We believe that will cover the area that the Democrats are talking of. So it is a question of whether you, as I understand it, bring forward what Senator Stott Despoja is talking about from regulations into the bill itself. We would rather do that through prescribed form under regulations which, of course, are subject to the scrutiny of the parliament. I can foreshadow that we oppose this amendment, and the opposition’s amendment on similar grounds, because it covers a similar area although expressed differently.

Question negatived.

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

I move opposition amendment (5) on sheet 4882:

(5)    Schedule 1, item 9, page 12 (after line 28), at the end of section 113, add:

        (4)    Without limiting subsection (2), the affidavit must set out:

             (a)    the name or names by which the person is known; and

             (b)    details (to the extent these are known to the chief officer) sufficient to identify the telecommunications services the person is using, or is likely to use; and

             (c)    the number of previous applications (if any) for warrants that the agency has made and that related to the person or to a service that the person has used; and

             (d)    the number of warrants (if any) previously issued on such applications; and

             (e)    particulars of the use made by the agency of information obtained by interceptions under such warrants.

We have effectively had the debate on this, so I will not go over the substance of the matter. In truth, the government agrees with it but is not prepared to provide the amendment. It is about a belt and braces approach. The government has just demonstrated again that, although it agrees with the sentiment, the issue is how it should be expressed—whether it should be expressed in legislation or in a form that can be altered at the whim of the agency, I suppose. I do not have any problem in the sense that the agency would do its best but, if there is the opportunity in this instance to put it in legislation to give guidance, then it is a much better place for it to be. It is unfortunate the government will not pick it up.

9:55 am

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

Of course it should be enshrined in the legislation and not on a form or in delegated legislation. I thank the opposition for their support of the last amendment. Obviously, the Democrats will be supporting the Labor amendments. The only difference I can see between the Democrat amendment and Labor’s is the inclusion of the particulars of the use made by the agency of information obtained by access under such warrants. Obviously, our amendment about that did not pass the committee. In this last ditch attempt, we will be supporting the Labor amendment.

9:56 am

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

For grounds similarly expressed, the government opposes this amendment.

Question negatived.

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

by leave—I move amendments (3), (4), (5) and (10) standing in my name on behalf of the Australian Democrats which relate to the issue of legal professional privilege.

(3)    Schedule 1, item 9, page 14 (line 28), omit “reason.”, substitute “reason; and”.

(4)    Schedule 1, item 9, page 14 (after line 28), at the end of subsection 116(2), add:

             (g)    whether the stored communication is likely to include information which is subject to legal professional privilege.

(5)    Schedule 1, item 9, page 15 (after line 17), at the end of section 118, add:

        (4)    A stored communications warrant must prohibit the collection of legally privileged information unless the contraventions to which section 116(1)(d) applies are punishable by imprisonment for a period, or a maximum period, of at least 7 years.

(10)  Schedule 1, item 9, page 29 (line 19), after “information”, insert “or information subject to legal professional privilege”.

We have previously discussed the importance of maintaining legal and professional privilege and these amendments intend to give effect to that. Obviously, amendment (3) is a technical amendment. Amendment (4) adds potential breaches of legal professional privilege to the list of matters to which the issuing authority must have regard before issuing a stored communication warrant. Allowing access to stored communications, as we have stated previously, has severe and serious privacy implications. Where access to email, voicemail and SMSs of a lawyer may occur, the agency exercising the warrant is likely to come into contact with documents subject to legal professional privilege that do not relate to the investigation in any way. This amendment simply requires that an issuing authority have regard to this fact when issuing the warrant. We believe that legal professional privilege is a fundamental tenet of our legal system, and it needs to be protected. This was something that was raised during the committee process in submissions, both written and verbal, to the inquiry. We asked witnesses about how best we could seek to protect legal professional privilege.

Amendment (5)—because (1) went down—intends to protect legal professional privilege in the absence of a high threshold during the application process of the stored communications warrant. Obviously, I did not succeed in increasing that threshold, so this is another way of building in more protections, specifically for the issue of legal professional privilege. As I have stated previously, it is crucial that we protect legal professional privilege not only because of reasons of privacy but also for reasons of good public policy. That reminds me: where is Senator Brett Mason while these debates are taking place—our new guru on privacy law? Maybe he should be in here giving us the contra view.

Amendment (10) moves to make inadmissible in an exempt proceeding material that is subject to legal professional privilege. I cannot emphasise enough that this seems to be a fairly basic issue. I thought there was broad concern for the protection of such privilege. I am dealing specifically with legal professional privilege. I know we have had amendments dealing with, and discussion about, other forms of professional privilege concerning members of parliament, religious leaders and doctors. Obviously, there are a range of people and professions that are potentially affected by this legislation, but these amendments go to the heart and the core of a legal issue. I hope that the government will see fit to support these amendments. I hope that the Labor Party will support them too.

10:00 am

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

We can go some of the way. The problem is in amendment (5). If you wanted to split (5) off, we would support the remainder. I think I would be inconsistent if I voted for that. I voted against your seven earlier. For the sake of consistency, I am not going to change my mind now. As for legal professional privilege, the committee report expressed a sensible procedure and a way forward for the parliament to deal with the issue under this new regime of stored communication and the other parts of the bill. It appears that in these amendments Senator Stott Despoja has tried to draw that matter from the committee report and then has added amendment (5), which deals with the seven years and which was from her dissenting report. I do not take issue with that. The Democrats are clearly, in this instance, progressing their view.

Labor has consistently said that the committee report has struck the right balance in ensuring people’s privacy and ensuring that law enforcement agencies have the requisite ability to fight crime. This is particularly necessary for crimes like drug trafficking. The law enforcement agencies were able to demonstrate during the committee process to the senators on that committee that there were circumstances where these types of matters needed to be dealt with by the law to give them the power and to clarify that law in other areas. They made their case forcefully. In terms of legal professional privilege, the Law Council and others made their case very forcefully that these protections should not be watered down unnecessarily. We think that the current bill does that. If the amendments that have been proposed by the Democrats and Labor in this area were adopted, it would create a situation where the bill would be much improved. I leave it up to you, Senator Stott Despoja. If you can separate (5) from the others I will vote for the amendments.

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

I’ll take what I can get!

Photo of Guy BarnettGuy Barnett (Tasmania, Liberal Party) Share this | | Hansard source

Senator Stott Despoja, would you like to move Democrat amendment (5) separately?

10:03 am

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

I would. I so move.

The Temporary Chairman:

We will put those separately.

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

The government has expressed its view on this previously. It is quite clear that when you are setting out to obtain a warrant of this sort you have a belief that this will be relevant to an investigation of a serious matter, but you never know—and nor could any person know—what it is going to turn up. You do not have a crystal ball which can tell you exactly what information will be discovered as a result of the warrant. And so, over a long period of time, our justice system has operated on the basis that law enforcement obtains a warrant under a strict regime.

Once the grounds have been made out, the warrant is issued and then the warrant turns up evidence. The police, or whoever is investigating the matter, then put together a brief. It goes to the DPP, to the court and to the prosecution. It is during the hearing in court that the court itself determines what is admissible as evidence. Before the matter even gets to court, the prosecuting authority will determine what will be led as evidence and what will not. Any good prosecutor worth his or her salt is not going to lead evidence which is going to be inadmissible or which is blatantly inadmissible. They will fall out of favour with the court if they do that too often. In any event, the court is the arbiter of what is admissible, and we believe that that is how it should continue to operate.

The theme of this debate is the same as saying that you should limit what you can access before you know what exactly is going to be turned up. Critics of that might turn around and say: ‘There’s our point. You don’t know what’s there and that’s the danger of it all.’ I point out that when a warrant is issued the issuing authority can impose conditions. They could include one which brought to the attention of the law enforcement agency the fact that there might be issues of professional privilege involved.

Warrants are the subject of annual reporting to the parliament. Whilst the details of the warrants are not, certainly the detail of any condition of a warrant can be the subject of judicial proceedings. If there were an abuse, one could, through judicial avenues, challenge the issuing of the warrant, what conditions are on it and whether the law enforcement agency concerned followed the conditions of the warrant. It would not be the first time in Australia’s history that a warrant has been challenged or the details of it have been questioned. The law books are full of those sorts of challenges. But I am saying that this continues the current regime, which is appropriate. Inadmissibility, or otherwise, of evidence is best left to the courts, and it is impossible to impose on anyone the ability to say, ‘If I execute this warrant, I will or will not come across legal professional privilege.’

I hasten to add: there have been cases where lawyers themselves have been charged. We have seen that recently in notable cases in Australia involving drug trafficking and other cases, where lawyers have been charged and have been part and parcel of the alleged criminal operation. So it is not as if lawyers are out there in an area where they should not be subject to scrutiny. We canvassed this yesterday, and we believe that the current regime should continue to operate in the format in which it has been operating successfully for some time.

10:07 am

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

Even if the government and the minister cannot stomach amendment (10), which deals with the issue of admissibility, and even if the government says, ‘No, we cannot cope with the idea of legal professional privilege or information that is subject to not being admissible,’ surely they cannot argue that amendment (4) is scary or that it is going to have an impact—judicial or otherwise—when there is a list of the matters to which the issuing authority must have regard. They are listed in the bill, and they are things like: how much the privacy of any person or persons would be likely to be interfered with by accessing those stored communications under a stored communications warrant; the gravity of the conduct constituting a serious contravention; how much information would assist in connection with the investigation; to what extent methods of investigating the serious contravention that do not involve the use of a stored communications warrant have been used et cetera; how much the use of such methods would be likely to assist in connection with the investigation by the agency—and the list goes on.

To add to that an amendment about whether the stored communication is likely to include information which is subject to legal professional privilege is just something for the issuing authority to have regard to and to include in this gladbag of issues that the issuing authority must already have regard to. It is not saying, ‘Have regard to it and it is all going to be inadmissible in court.’

In conjunction with amendment (10), there are issues there. But they should have regard to whether or not legal professional privilege is going to be covered—in the same way that the first point in that list of matters includes the issue of privacy. Amendment (4) is not a scary amendment. It does not offer, in isolation, the strength of protection that I would like to offer lawyers and clients. I just do not see why that cannot be listed under that particular section. You have got (a) to (f) already. It is simple to add (g), which says, ‘The issuing authority must have regard’. It is essentially to consider legal professional privilege—whether the stored communication is likely to include information which is subject to legal professional privilege. It is not binding in a way that is nerve-racking or in a way that means the warrant cannot be issued.

I just do not see why this is not a good amendment in the interests of public policy for this government. I would be happy to separate amendments (4) and (10) if that were required; obviously (3) is the technical amendment that adds ‘and’ so that you can get (g). But I do not understand the government’s rationale regarding this particular amendment, even if I can understand the so-called logic in getting rid of amendment (10).

Through the chair to Senator Ludwig: I thank the Labor Party for their support on the amendments that they have indicated they will be supporting. I recognise that they will not be supporting the high threshold. I understand the consistency in that argument.

Photo of Guy BarnettGuy Barnett (Tasmania, Liberal Party) Share this | | Hansard source

I propose that we move Democrat amendments (3), (4) and (10) together, followed by (5), unless there is a view put that is contrary to that.

10:12 am

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

I would like to move amendments (3) and (4) together, and then (5) and (10) separately. I genuinely ask the minister to respond to and make clear the concerns with amendments (3) and (4). I understand his concerns with amendment (10).

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

If it is relating to professional privilege, I have made that point quite clear. That is a matter best left for the courts, and it has been done so in that way. This would be cherry-picking an aspect of interception law which does not apply elsewhere—because we do not have that elsewhere in relation to warrants. That then leads to not only untidiness but also undesired results. I think it is best left as it is, with clause 116 requiring the issuing authority to consider those aspects that are listed. The question of legal professional privilege should be left as it is so that it applies consistently across the Commonwealth’s laws. The government believes that changing that at this stage would be fraught with difficulty.

The Temporary Chairman:

The question is that Democrat amendments (3) and (4) be agreed to.

Question negatived.

The Temporary Chairman:

The question is the Democrat amendment (5) be agreed to.

Question negatived.

The Temporary Chairman:

The question is that Democrat amendment (10) be agreed to.

Question negatived.

10:14 am

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

by leave—I move opposition amendments (14) and (16) on sheet 4882:

(14)  Schedule 2, page 62 (after line 26), after item 3, insert:

3B At the end of section 9B

Add:

        (3)    A warrant under section 9, in a case in which subparagraph 9(1)(a)(ia) applies, shall not authorise the interception or further use of communications which are subject to legal professional privilege.

(16)  Schedule 2, page 63 (after line 30), at the end of the Schedule, add:

11 After section 47

Insert:

47A Warrant not to authorise interception of material subject to legal professional privilege

A warrant issued under section 46, in a case to which subparagraph 46(1)(d)(ii) applies, shall not authorise the interception or further use of communications which are subject to legal professional privilege.

Notwithstanding the debate we have had on legal professional privilege, we are going to have it again. What has not ceased to amaze me in the last couple of days is that before 1 July this government was far more accommodating in terms of the recommendations out of a Senate committee report, especially when it was a majority report. The report in this instance was almost unanimous in the sense that there were additional dissenting comments; it was not a dissenting report—I will take some licence from you, Senator Stott Despoja. In this instance, government senators and Labor senators said, ‘There are recommendations which we think the government should seriously look at.’ Prior to 1 July, the government would have had a good look at them and where it could meet them it would. It knew that it would have to come into this place and defend its position. If the opposition, the Greens, the minor parties and the Democrats could argue the case—and when Senator Harradine was here, he would sometimes join in the argument and we would try and persuade him as well—we could effect an outcome: we could move an amendment and have it succeed.

With that view in mind, many a time the government came to a position where, before it got to the floor of the parliament, it would negotiate, look at the amendment and come up with an answer that might meet the concern of the committee. Following 1 July, we now have government senators still doing their job in committees. They are still taking the metered course of looking at the legislation, seriously listening to submitters, taking their concerns on board and bringing recommendations through the committee process to influence government.

The Attorney-General, in this instance, I think, is lazy. I doubt he has even looked at the report, quite frankly. He has clearly picked up the obvious recommendation like the Spam Act, which really could not be ignored and had to be dealt with. He looked at his own amendments that he wanted to put through—and we saw that yesterday—and then did not come back to the other recommendations at all to look at whether they could be supported. He dismissed not only Labor’s position in terms of the report but also his own backbench committee, in effect. This is a position that the government senators should start to recognise: that even their recommendations in committee reports are ineffectual in trying to persuade this government on issues. Maybe they should start taking a different tack.

The problem is that this is a new regime—the stored communication regime. It is a new area. The submitters argued that it should not be in a separate regime; that it should be part of the telecommunications interception regime for real time as well. Blunn indicated in his review that there should be a separate regime. In so doing, he ranged across a number of areas. The committee heard from submitters that the issue of privilege should be dealt with in a practical way—and that ended up in the committee recommendations—that the bill should contain sensible amendments and that, in terms of B party, it required more protection.

With regard to stored communications, we can accept Blunn’s view, and the way the legislation would work would not necessarily mean you would need to have the same type of protection. But B party is where Blunn said, ‘limited and controlled circumstances’. Of course, in that, we cannot be guided any further than by what he said in his review. However, we can be guided by the committee report, which indicated it should be used in limited and controlled circumstances and made some substantive recommendations about the use of privilege. The substantive recommendations on privilege indicated that we should take a belt and braces approach.

I do not think it is an argument to say that the government wants to maintain consistency across all legislation. That would be news to me if the government did that. It would be a fine day, certainly, if the government said, ‘All our legislation across all our acts and various regulations is consistent.’ Of course it is not consistent. There are inconsistencies all over the place because of the very nature sometimes of the legislation and the requirements or there is an exception to the general rule. In this instance, a case can be made for this committee recommendation to be included in the legislation to provide the protections that are required. That argument can be made and it is being made today. I do not think it is an answer to say that the government wants to keep it consistent across the area. Even Blunn recognised that this area was more difficult and should be one of those exceptions to the general rule that would otherwise prevail. The committee report thought—and government senators thought also, might I add—that it should in fact be the exception to the general rule and that protections should be afforded. It is not onerous. It is not going to create any great difficulty.

In relation to the B-party protection of legal professional privilege, recommendation 22 of the report provides a straightforward way of ensuring that the communications for legal professional privilege are maintained. Labor wants to make the legislation regarding this protection explicitly clear so that it strikes out the use of interceptions in these cases in the first instance rather than dragging them through the courts. The amendment makes it abundantly clear that legal professional privilege is protected. On that basis we move that amendment and seek the government’s and the Democrats’ support.

10:22 am

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

I can certainly give Senator Ludwig the Democrats’ support. We have indicated repeatedly, including in the last set of amendments—which unfortunately were unsuccessful—that the issue of legal professional privilege is important to us. That was, as Senator Ludwig outlined, the view of the committee and everyone, particularly the major parties and of course the Democrats. We also in our supplementary, additional et cetera comments in the report made it clear that this issue was of utmost importance to us. Witnesses from the legal profession and other sectors also identified that it was important to them. Recommendation 9 of the committee stated:

The Committee also recommends that the Bill be amended to require issuers of stored communications warrants to consider whether the stored communications are likely to include communications the subject of legal professional privilege and whether any conditions may be implemented to prevent the disclosure of such communications.

In our own ways both Labor and the Democrats have attempted to protect legal professional privilege, at a minimum by ensuring that the issuing authority has regard to—as in considers—whether or not something is likely to be subject to legal professional privilege. That does not bind anyone. The last amendment seemed really simple, logical and nice, but it was still lost. That gives me an idea of the government’s perspective.

The Labor amendment moves to prevent the issuing of a warrant where the interception of communications may be subject to legal professional privilege. I think it would be better if the clause had some kind of likelihood provision, because it cannot be definitely known that a communication will contain information subject to legal professional privilege before the interception has occurred. I think amendment (16) is comparable to—it is much the same as, I suppose—Labor amendment (14), but it includes a provision about the likelihood that documents of legal professional privilege will be intercepted. We included and supported the notion of likelihood.

Again, I think this is a really fundamental issue. I do not think it is one that would be scary to the government or, surely, the enforcement agencies. I am very disappointed that the government has not taken up the committee’s recommendations. I am not sure whether Senator Ludwig is right that this is a consequence of rushed processes or truncated timelines and committees or whether the further removal of protections for a range of rights, responsibilities or liberties of our society is the intent of the legislation. I think this goes the crux of the problems with this legislation. If we cannot even consider the issue of legal professional privilege as one that needs to be further protected in this legislation, and done in a way that is not threatening, then I think we have a big problem.

10:26 am

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

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.

10:29 am

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

Minister, quite frankly, I reject the propositions that you have put.

Honourable Senator:

An honourable senator interjecting

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

I recollect it. The Attorney-General has picked up one substantive recommendation out of the committee report: the spam one. You might say that there are a few more, but that was the substantive one. It was a matter that, I think, the Attorney-General’s Department was embarrassed about at the one-day hearing that the committee had, because, of course, they should have picked it up. They did not really need the telecommunications authority to come along and say, ‘Hey, I’m in trouble if you do this.’ The Attorney-General’s Department looked embarrassed on the day, and they should have been embarrassed. That was the Attorney-General picking up the recommendation. I do not think he had a choice, quite frankly.

It was an error that needed to be corrected, and it was embarrassing that we had to get to a point where that authority had to make a submission to the committee to get the error corrected. One would have thought that a phone call to the Attorney-General’s Department saying, ‘Look, there’s a problem and we need it fixed,’ would have rectified it rather than having to go to the committee and then embarrassing the Attorney-General. I enjoyed it, I have to say; I do not suppose that they did very much. I could go into a couple of spam jokes, but I will not. I will save us all from that. It is an area in which we now have a position where Labor, the committee and the majority committee members, including Liberal backbenchers, have recommended that strong privacy protections, and the safeguards necessary to ensure that those privacy concerns are addressed, are included in this bill, and the government is dismissive of that position. That is where we have now got to.

Question negatived.

I move:

(6)    Schedule 1, item 9, page 15 (after line 17), at the end of section 118, add:

        (4)    Without limiting subsection (2), the warrant may specify that:

             (a)    stored communications which were transmitted prior to a specified date may not be accessed; and

             (b)    only stored communications sent to or by certain named persons may be accessed.

Here is a good opportunity. I move this amendment with some hope, I guess. The matters under consideration are issues about stored communication warrants. It is really a technical amendment that summarises, as I have said, Labor’s belt and braces approach to strengthening privacy protection. The purpose of this amendment is best summarised if you look at paragraph 3.71 of the committee report. It is a very short paragraph. If the government were serious about ensuring that there was an improvement to the legislation and if they had adequately looked at all the committee recommendations and the issues in some detail, one wonders why they would not pick it up.

This is what the committee report said:

... individual privacy protection ought to be the chief consideration in any regime permitting access to personal communications. This is particularly important where communications may include information subject to legal professional privilege. The Committee considers that additional considerations for issuing authorities such as those suggested above will only serve to enhance the privacy protection already outlined in the Bill.

Minister, this provides for a matter that was raised. The committee did not look at it in any long detail because it thought it was a pretty short point that you should pick up, quite frankly. The minister talked about consistency. How about some consistency with the Blunn review? That would help too. We would certainly achieve a much better outcome if you adopted consistency not only across your legislative framework but also out of the Blunn review. This is a matter that you could easily deal with. I call on the government to agree that they do want consistency with Blunn.

10:34 am

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

The Australian Democrats will be supporting the opposition amendment. The amendment moves that a warrant may specify that communications prior to a specified date be inaccessible or that communications from a specified person be inaccessible. We believe that this recommendation is quite sensible. It gives the issuing authority discretion to prevent agencies from having the ability to access stored communications going back too many years. In some cases, the entire correspondence of some people is stored in their e-mail accounts. I am sure that none of us here do that, but nonetheless it is a sensible amendment. It is consistent and the Democrats will be supporting it.

On the issue of the recommendations contained in the Senate committee report, Senator Ludwig has made the obvious retort, which refers to the nature of the recommendations that have been picked up by the government, not just the lack of them. I do not think that 11 recommendations are a lot to boast about, just quietly, but there is also the fact that they are not exactly the largely substantive recommendations. I want to put on the record that the committee certainly had cross-party support for those recommendations. It is a chair’s report from the government, obviously, and signed on by the Australian Labor Party. I believe that the recommendations do not go far enough, but they are certainly sensible and constructive recommendations that ameliorate some of the worst aspects of the bill and build in some strengthened protections in many cases.

I do not say this naively, but I honestly thought that the government would consider those recommendations. I honestly thought that more than 11 recommendations, and certainly some substantial ones, would be picked up. Senator Payne was the effective chair of that committee. Senators Ludwig and Kirk, and of course I, are here in the chamber and we were present for the inquiry. I suppose we are still trying to do the work of the committee in this place. I do not think that 11 recommendations are a lot to boast about when we are dealing with reasonably significant matters. On behalf of the Democrats, I say that we will be supporting this amendment.

10:36 am

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

Firstly, the government reject any suggestion that we are in fact inconsistent in the way we have approached the Blunn report. I am advised the Blunn report did not canvass this particular issue. It did in general say there should be a balancing of privacy issues with law enforcement, but in no particular way did it mention any recommendation which would support the specificity of the opposition amendment. Indeed, it is the specificity of the opposition amendment which causes some trouble because it could qualify the very good work done by clause 116(2) of the bill. This clause addresses that balance between privacy and law enforcement. It says:

(2) The matters to which the issuing authority must have regard are:

(a) how much the privacy of any person or persons would be likely to be interfered with by accessing those stored  communications under a stored communications warrant …

It goes on to list other things that need to be taken into account, but that is the gravamen of it. Then the opposition comes in with an addition which says the warrant may specify that stored communications which were transmitted prior to a certain time and only stored communications sent to or by a certain named person may be accessed. We think that is superfluous. It is not necessary. When you have a general authority given by clause 116(2)(a), which is a very important one, we do not want to fetter in any way the issuing authority’s ability to impose conditions in relation to privacy.

The opposition’s amendment, although it says ‘without limiting subsection (2)’, then goes on to specify certain things. We think that is unnecessary, it does not add to it and it should be left at clause 116(2)(a), with that general authority given to the issuing authority, who can then determine those conditions. There are a very broad range of them. It is a very clean sheet, if you like, to consider aspects of privacy. And I will touch on that again:

(2) The matters to which the issuing authority must have regard are:

(a) how much the privacy of any person or persons would be likely to be interfered with by accessing those stored communications under a stored communications warrant …

That is a broad remit, and so it should be. A more particular reference, I think, is unnecessary and unhelpful. The government therefore opposes the opposition amendment.

10:40 am

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

Just quickly on the issue of the Blunn report, I was wondering if the minister could show us where the Blunn report recommends the introduction of equipment based warrants.

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

Whilst we turn up the report recommendations, can I say that at the very outset we made it clear that the amendments and this bill were the result of work done since 2004; I said that repeatedly. It was a result of the telecommunications bill which went through at that time and the result of recommendations by a parliamentary committee, and consequently we commissioned the Blunn report. There are aspects of this bill that are not covered by the Blunn report and we make no apology for that, because you do not commission a report and then slavishly say, ‘That’s all we’ll deal with—what the report dealt with.’ The government are being consistent in our approach to Blunn and we reject any allegation that we have not been. Recommendation xvi of the Blunn report says:

as a matter of priority a unique and indelible identifier of the source of telecommunications be developed as the basis for access …

We believe what Blunn is referring to there is the IMEI, an equipment identifier. I think that covers that aspect. There is no inconsistency in the way we have put forward this bill and the way we commissioned the Blunn report and had regard to it.

10:42 am

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

Where the Senate Legal and Constitutional Legislation Committee and Blunn agree, and the minister seems to disagree, is on the findings at the very beginning of the Blunn report. On page 5, it says:

That, as identified in the body of my report:

  • the protection of privacy should continue to be a fundamental consideration in, and the starting point for, any legislation providing access to telecommunications for security and law enforcement purposes

The Senate committee and this subsequent amendment by Labor are seeking to achieve that purpose, as well as to ensure that the basic structures are not interfered with. Everybody agrees, except perhaps the Greens—but I will not go there because they are not here—that the telecommunications interception regime since 1979 has been and is a feature of our law enforcement agencies. Labor has sought, as part of the committee recommendation, for that to continue. It is a matter that the government takes issue with and it is clearly an amendment that is not going to get up in this chamber, but Labor seeks the support of the Senate in any event.

Question negatived.

10:44 am

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

by leave—I move Democrat amendments (6) and (26) on sheet 4869:

(6)    Schedule 1, item 9, page 19 (after line 18), at the end of Division 3, add:

124A Subject of warrant to be notified

        (1)    The chief officer must notify a person in respect of whom a stored communications warrant is issued of the existence of the warrant as soon as practicable following the issue of the warrant.

        (2)    Subsection (1) does not apply in relation to a warrant where, in the opinion of the chief officer, notification would prejudice the investigation in relation to which the warrant is sought.

        (3)    If subsection (2) applies, then the chief officer must notify the person in respect of whom a stored communications warrant is issued of the existence of the warrant immediately once such notification would not longer prejudice the investigation.

(26)  Schedule 2, page 63 (after line 30), at the end of the Schedule, add:

11 After section 48

Insert:

48A Subject of warrant to be notified

        (1)    The chief officer must notify a person, in respect of whom a warrant is issued under section 46B, of the existence of the warrant as soon as practicable following the issue of the warrant.

        (2)    Subsection (1) does not apply in relation to a warrant where, in the opinion of the chief officer, notification would prejudice the investigation in relation to which the warrant is sought.

        (3)    If subsection (2) applies, then the chief officer must notify the person, in respect of whom a stored communications warrant is issued, of the existence of the warrant, immediately once such notification would not longer prejudice the investigation.

Amendment (6) moves to inform the person against whom a warrant was exercised so that they are aware that a warrant was exercised and may seek remedies where they are a genuinely aggrieved person. This amendment takes into account consideration the agency, so as not to compromise any investigation they are conducting. It is fairly even handed in that respect, we believe. The bill, as we know, contains civil remedies so that an aggrieved person may have access to redress should they be adversely affected. This amendment seeks to give practical effect to the section by allowing a potentially aggrieved person to know about the existence of the warrant so they can then act on that information if it is required. Amendment (26) requires the subject of a B-party warrant to be notified so that they can have access to remedies. Obviously we are dealing with B parties as well.

10:46 am

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

It will not come as a surprise to the Democrats in this respect that we do not support the amendment as put forward by the Democrats. I can understand the principle behind the amendment, and perhaps we share the principle of improving the protections in this legislation to ensure that there is the right balance. It is not a matter that we think fits into that framework, although on that basis we accept the principle but perhaps not the final words that have been put forward. We do not see even a way of separating it so we could provide support. It is probably easiest just to indicate that we will not supporting these Democrat amendments.

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

The government will not be agreeing to these amendments. The covert nature of this regime is extremely important to law enforcement, and these amendments would effectively gut the whole operation of it. It would certainly render it of no effect. It really is quite a basic issue.

10:47 am

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

I understand the numbers in the chamber but I ask the minister about his understanding of how people who are aggrieved would access those civil remedies. How would they be alerted to or aware of the process against them? Are there current safeguards that provide for that, in his view?

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

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.

10:51 am

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

I am not talking about harm. The bill provides for civil remedies if there is an aggrieved person. I am wondering how that person finds out that they are aggrieved or that some harm has been done to them. What I am tackling in this amendment is the issue of notification that a warrant has been issued. If the minister is aware of the specifics of the amendment dealing with the subject of the warrant to be notified, he will notice that it says:

(2)  Subsection (1) does not apply in relation to a warrant where, in the opinion of the chief officer, notification would prejudice the investigation in relation to which the warrant is sought.

(3)  If subsection (2) applies, then the chief officer must notify the person in respect of whom a stored communications warrant is issued of the existence of the warrant immediately once such notification would not longer prejudice the investigation.

That is built in. The minister says the ‘guts’ of this is a problem—letting people know. But there are safeguards in here. There are provisos to allow for notification that ensure that there is no material harm to the investigation.

I am not talking about penalties or harm. The bill provides for that; the bill provides for people who are aggrieved to seek civil remedies. I want to know how someone can find out that they can even access those civil remedies. How do they know that a warrant has been issued against them? When do you tell them? That is the substance of this amendment. It is not supposed to ‘gut’ the bill; it is not supposed to ‘gut’ the investigation; it is supposed to inform someone against whom a warrant has been issued. That can be done at a time that does not prejudice the investigation.

It seems very bizarre to me to have a bill that provides for civil remedies if you have been aggrieved as a consequence of having a warrant issued against you when you cannot know that a warrant has been issued. I am dealing with the specific issue of notification.

10:54 am

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

There are strict criteria for how a warrant will be issued. What Senator Stott Despoja is doing here is shying at shadows. The bill talks about harm and civil remedy. That is part of this country’s judicial system. You can only get a remedy if you suffer harm. If you suffer no harm at all, you cannot go to court and manufacture a case or an action out of thin air. You have to have suffered a disadvantage, which can be across a range of areas. What we are saying is that, where that harm is evidenced, the civil remedies apply.

If there is an investigation that involves a B-party warrant and nothing comes of it and another person is charged and dealt with and the communication with the B party is never realised, where is the grievance that Senator Stott Despoja is referring to that enables an action for civil remedy? If nothing happens, there should be no action. If there is no disadvantage suffered by the person, there is no civil remedy. We are saying that if there is harm then, sure, you have a civil remedy. You are saying, ‘I might be harmed and don’t know about it.’ With respect, that is a very difficult proposition.

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

Under our law, any action has to be based on a case which demonstrates some disadvantage or harm. If a person never knows that they have been discriminated against—and this is across the board—they cannot bring the action.

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

That is the point.

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

But the fact is that this happens across the board in our system. The fact is that if you notify people that you have a warrant against them you will destroy the whole regime this legislation is creating.

If someone defames someone and that person never finds out about it, they are not capable of bringing an action—they cannot bring the action because they do not know about it. That is a basis of our system. If they do not know about it—it has not been demonstrated to them—they cannot argue the case, then, can they? What I am saying here is that, if there is no disadvantage, where is the action?

10:58 am

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

This precisely goes to the fact that someone may be harmed. The information may leak. The protections that are in this bill—insufficient as they are—do not ensure that information will not get out. Say information does get out; say information about a person or their communications, stored or otherwise, gets out but that person does not know where that information came from. Isn’t it their right to know that they were the subject of a warrant or that their conversations and information were intercepted?

The notion that, ‘If you have been harmed but do not know about then that is okay,’ is precisely the problem that I have with this legislation. I imagine that anyone, whether a person in this chamber or a member of the public, would probably want to be notified if their conversations were subject to some form of monitoring or interception. That is logical, especially if that information is never used. If the minister’s argument is: ‘No harm can come to them. It wasn’t material to the investigation; it wasn’t needed. What’s the harm? If no harm’s been perpetrated against them and the material wasn’t damaging, why do they need to know?’ then this is where there is a line in the sand in terms of our particular views or philosophies, because I think people have a right to know.

This amendment ensures that people are notified and it does so in a way that does not prejudice the investigation. It is specifically worded in such a way that it does not apply in relation to a warrant where in the opinion of the chief officer notification would prejudice the investigation in relation to which the warrant is sought. So, when the minister talks about harm, I am not addressing the issue of harm done to people, whether it is one of those examples of discrimination or defamation or whatever it may be, because that is provided for.

But the fact that people do not know that there has been a warrant issued means that they may not know that harm has been done. Whether it is information or other things being leaked or accessed or information that is wrong, they do not know so they cannot access these remedies that are provided for in the legislation. If the government and the opposition really think that people do not need to know, then that is wrong. We are talking in many cases about retrospective notification, and the government will not even go for that. I think that this is a very damaging aspect of the debate and it worries me more that the minister thinks that harm is not done to someone if they do not know about it. What a ridiculous concept!

11:01 am

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

I never said that at all. Senator Stott Despoja should not misrepresent me. I said that it was quite possible that wrong was occasioned to a person without that person knowing about it. You could be defamed in one part of the country and not know about it because you are living in another part. Where you have a legitimate search warrant and you find a letter, which is much like a stored communication, from a third party, and you read that letter and it divulges some relationship between the suspect and a third party and that relationship could cause a great deal of harm to that person’s personal life, there is no requirement by law enforcement officers to communicate with that third party. There is no requirement at all. It is not acted upon; it is knowledge which has been gained during a search warrant. It may be extremely embarrassing to the person concerned, the third party, who is not under investigation but that does not mean that you have to notify every Tom, Dick and Harry that is mentioned or touched on in a search warrant of a house or a property where other third parties, albeit innocent, are mentioned or where there is information. It happens time and time again. It is all a question of what is admissible in the court. There is information that law enforcement comes by all the time during investigations which has no relevance and is discarded. But it does happen because we do not have the ability to say that we are simply not going to go into that house because we might find a letter which might embarrass someone or, if we do go into that house and we find an embarrassing letter we are going to phone them up and say, ‘We just found a very confidential piece of correspondence’—which is the same as an email or a telephone call—‘which is embarrassing to you.’ The search warrant quite rightly allows them to search for documents and to read documents. That happens. It is the same here. To go notifying people of this would destroy the regime. The civil remedies mentioned apply to unlawful interception and we have in place very strict measures for the warrant to be obtained under lawful circumstances, and that is clear in the bill.

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

In relation to the last part of the minister’s answer: how do they know? How do they find out if there is an unlawful interception or something has gone wrong if they do not know that they are being intercepted in the first place? How do they know?

11:04 am

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

If Senator Brown were here I am sure that he would go to the analogy of the tree falling in the forest and whether it would be heard. It is a well-argued matter. In principle I see where you are heading. There is an issue surrounding it and I think that the principle needs addressing. I do not think this quite addresses the principle, and that is the difficulty. That is why Labor have indicated that we will not support it. The rationale that the Democrats have put forward is a sensible proposition but the amendment does not, in my view, address that.

We are trying to guard against certain investigations. One of the analogies—perhaps a better one than the tree in the forest—is: if there is an ongoing investigation by the authorities into a robbery, they do not usually go and tell the robber that they are investigating him at that point. Even when the investigation is complete I am not sure whether they then sometimes go and tell the people concerned. They could spend a lot of time running around telling people what they have been doing, but I would rather they do their work. They do not have a duty in that respect; they have a duty to investigate crime where they find it and to gain evidence and prosecute crime. That is the main role that they are supposed to have.

The problem with the amendment is that it does create quite a complex regime that someone would have to wend their way through. But I do not particularly want to argue against your amendment. I indicated that I was not going to support it. I can see where you are heading in principle and I agree with the principle, but I am not going to provide ammunition for the government to argue against your proposition. The underlying principle that governments struggle with is how they ensure that people’s privacy is protected in such a way that no harm should come of it.

In fact, if you look at later amendments by Labor where we seek to strengthen the way information is held by agencies and the way it is then protected and destroyed when it is no longer required, that is really the other side of the coin in this debate. For a person who has been subject to a stored communications warrant, if the information is subsequently destroyed or held appropriately in an agency then there is a position which ensures that that information cannot harm someone. In any event, I do not want to take up too much time on this part of the debate.

11:07 am

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

I acknowledge the robbery analogy that Senator Ludwig uses, but I think that falls down when we are talking about nonsuspects. In relation to any kind of prejudice of investigations, I want to put on record again that these amendments deal very clearly with the notion that a chief officer does not have to notify if there is any sense that that would be prejudicial to the investigation in relation to which the warrant is sought.

I want to make very clear that, if I am the subject of any telephone interceptions or what have you, I would like to know about it, especially if that material is not used in evidence or is considered irrelevant. I still want to know, and I would imagine that most Australian citizens would want to know too, especially if they felt that they were aggrieved or harmed in some way, whatever way that may be, so that they could actually access the civil remedies that are available under the bill. I think that is a pretty clear position, and I am very disappointed that these amendments will not be passed, but I read the numbers.

Question negatived.

by leave—I move Democrats amendments (7) to (9) on sheet 4869:

(7)    Schedule 1, item 9, page 27 (lines 8 to 26), omit subsection 139(3), substitute:

        (3)    A contravention to which this subsection applies is a contravention of a law of the Commonwealth, a State or a Territory that is a serious offence.

(8)    Schedule 1, item 9, page 27 (line 29), omit “paragraph (3)(a) or (b)”, substitute “subsection (3)”.

(9)    Schedule 1, item 9, page 28 (lines 1 and 2), omit paragraph 139(4)(e).

These amendments seek to maintain the threshold for information obtained under a stored communications warrant at three years so that it may not be used in investigations of offences punishable by 12 months or for investigations which involve civil penalty units or regimes. It is inappropriate for Commonwealth bodies such as the Australian Taxation Office and ASIC to have the ability to access stored communications in a covert manner in order to investigate offences punishable by civil penalties. As I have argued previously, interceptions of stored communications are as invasive as interceptions of live communications, so obviously these amendments are intended to add some restrictions in dealing with those stored communications.

11:10 am

Photo of Joe LudwigJoe 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.

11:15 am

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

As much as I really want the Labor Party to support these amendments, I fear they may go a bit further than the Labor Party were hoping, particularly in amendment (9) in relation to omitting paragraph 139(4)(e), which obviously effectively omits the pecuniary penalty line altogether. My reading of the amendment—and I suspect it is the government’s or at least its advisers’—would be that it would have the effect of going further and would affect those agencies to which you referred. That is the Democrat intent, but perhaps that is not something that you would want to sign up to. I am not quite sure if that means you can support two of the three amendments, but we will see how we go.

11:16 am

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

Senator Stott Despoja, you fail on page 28 of the—

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

I should not have told you.

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

No. I was busily reading it. I am sure the government would have highlighted it. The point at which you fail is: a proceeding for recovery of pecuniary penalty for a contravention of the kind referred to in paragraph 3(c). We support you in principle, and my submissions certainly go to this issue, but you have taken that one little step too far, in our view. As a consequence, I should correct the record and say we will not be supporting your amendments. They are close but not quite there.

11:17 am

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

Without prolonging the debate—the matter has been fairly well ventilated—the government oppose these amendments. We believe that the Democrat proposal would totally undermine the regime that we are proposing. The one year threshold for the use of stored communications material represents an appropriate balance between the protections necessary for these communications and the operational needs of law enforcement. I think it is best left there. The government are opposed to these amendments.

Question negatived.

11:18 am

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

by leave—I move opposition amendments (7) and (8).

(7)    Schedule 1, item 9, page 32 (after line 21), after subsection 150(1), insert:

     (1A)    The chief officer must cause a review to be conducted annually of all information or records to which paragraph (1)(a) applies, in order to determine whether the records should be destroyed in accordance with subsection (1).

(8)    Schedule 1, item 9, page 33 (after line 9), at the end of Division 1, add:

151A Other records to be kept in connection with access to stored communications

        (1)    The chief officer of an enforcement agency shall cause:

             (a)    particulars of each telephone application for a stored communications warrant made by the agency; and

             (b)    in relation to each application by the agency for a stored communications warrant, a statement as to whether:

                   (i)    the application was withdrawn or refused; or

                  (ii)    a warrant was issued on the application; and

             (c)    in relation to each stored communications warrant, particulars of:

                   (i)    the warrant; and

                  (ii)    the day on which, and the time at which, each access of stored communications under the warrant occurred; and

                 (iii)    the name of the person who carried out each such interception; and

                  (v)    each service from which stored communications were accessed under the warrant; and

             (d)    particulars of each use by the agency of lawfully obtained information; and

             (e)    particulars of each communication of lawfully obtained information by an officer or staff member of the agency to a person other than an officer or staff member of the agency; and

              (f)    particulars of each occasion when, to the knowledge of an officer of the agency, lawfully obtained information was given in evidence in a relevant proceeding in relation to the agency;

to be recorded in writing or by means of a computer as soon as practicable after the happening of the events to which the particulars relate or the information or statement relates, as the case may be.

These amendments deal with the reporting regime for stored communications. I will not take very long on them. These matters were reflected in recommendations 10 and 11. In total, they strengthen the legislation by specifying time limits on which an agency must review their holdings of information accessed by stored communications warrants.

I think I made the argument a short time ago that this implements a reporting regime for stored communications. These amendments do not achieve all that was in recommendations 10 and 11. They are matters that we might come back to in the future when we have had sufficiently more time. There was not time to complete the drafting process that 10 and 11 would have required, and that is a complaint I make again. However, we have left two amendments that improve on the current situation in requiring agencies to improve their record keeping and review processes. I could not imagine why anyone would oppose that.

11:19 am

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

Even though the Labor Party would not go that extra mile—or extra inch more likely—for the Democrat amendment the last time round, we will be supporting this. It is a good amendment. It is a sensible amendment. It requires a review of the records to be done so as to allow for the destruction of the records. It is also good because it will result in the agency being aware of the extent of their records and it will not allow records to be lost in the system. It gives practical effect to the destruction provisions, which were previously ineffective, as contained in section 150. It forces the chief officer to turn his or her mind to the information stored and, as such, the information will have to be destroyed forthwith. The Democrats will support this amendment.

11:20 am

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

We are dealing here with the destruction of records and the keeping of records. In one case it is very good to keep the records and in the other case it is very good to destroy them. We believe that the bill has sufficient protection in relation to individual privacy and other aspects which are of concern. Clause 151 requires a chief officer of an enforcement agency to destroy stored communications information forthwith when such information is no longer needed for an investigation or prosecution. That, of course, deals with irrelevant material, and we have debated that earlier. Clause 152 further requires a chief officer of an enforcement agency to report to the Attorney-General on an annual basis the particulars relating to the destruction of stored communications information held by the enforcement agency. We believe that is appropriate.

On the other side of the coin, we believe that the keeping of warrants and the like is very important. Clause 151 provides that each enforcement agency must keep records of each stored communications warrant issued, each instrument of revocation, each evidentiary certificate and particulars of the destruction of information accessed under a stored communications warrant. The Ombudsman will have oversight of law enforcement agencies’ use of stored communications warrants. And as the Attorney has said—and I have said it repeatedly—we will continue to consider the recommendations of the committee which were not adopted in this bill. The government is opposed to opposition amendments (7) and (8) for the reasons that I have mentioned.

Question negatived.

11:22 am

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

I move opposition amendment (9):

(9)    Schedule 1, item 9, page 33 (line 28), omit “3”, substitute “6”.

It provides for an extension of time for the Ombudsman’s report. It extends the time frame under section 153 as requested by the Ombudsman himself and recommended by the committee.

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

Once again, the Democrats will support the amendment moved by the Labor Party in its attempt to increase the reporting period of the Ombudsman from three to six months. We believe it is particularly important. It follows the recommendation from the committee as well as satisfies the request of the Ombudsman in his submission to the Senate inquiry to allow more time to report to the parliament due to the various constraints that are imposed upon him by, I suspect, an ever-increasing workload. I would hope that something is being done to assist the Ombudsman in terms of his resourcing so that he can continue to effectively carry out his duties. I note that this is a request by him and a committee recommendation. It is a good amendment and one that we happily support, and I hope the government will too.

11:23 am

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

For the record, the government opposes this amendment. It sees no reason to delay the report of the Ombudsman—in fact, it should be reporting which is fairly expeditious. I think the delay of it is undesirable, but the government will continue to, as I say, consider those recommendations of the committee. At this stage, there is no compelling reason the government sees to agree to this amendment.

Question negatived.

11:24 am

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

by leave—I move Democrat amendments (11) to (17) standing in my name:

(11)  Schedule 1, item 9 page 37 (line 26), omit “year.”, substitute “year; and”.

(12)  Schedule 1, item 9, page 37 (after line 26), at the end of subsection 162(1), add:

             (c)    the number of warrants issued in relation to applications that the agency made during that year, where the warrant specified conditions or restrictions under subsection 118(2); and

             (d)    the categories of serious contraventions to which the applications related; and

             (e)    the number of warrants that permitted:

                   (i)    1 telecommunications service to be accessed; and

                  (ii)    2 to 5 telecommunications services to be accessed; and

                 (iii)    6 to10 telecommunications services to be accessed; and

                 (iv)    more than 10 telecommunications services to be accessed.

(13)  Schedule 1, item 9, page 38 (line 1), omit “renewal applications”, substitute “further warrant applications”.

(14)  Schedule 1, item 9, page 38 (line 6), omit “warrants.”, substitute “warrants; and”.

(15)  Schedule 1, item 9, page 38 (after line 6), at the end of subsection 162(2), add:

             (c)    the number of warrants issued in relation to applications that the agency made during that year, where the warrant specified conditions or restrictions under subsection 118(2); and

             (d)    the categories of serious contraventions to which the applications related; and

             (e)    the number of warrants that permitted:

                   (i)    1 telecommunications service to be accessed; and

                  (ii)    2 to 5 telecommunications services to be accessed; and

                 (iii)    6 to 10 telecommunications services to be accessed; and

                 (iv)    more than 10 telecommunications services to be accessed.

(16)  Schedule 1, item 9, page 38 (line 14), omit “evidence.”, substitute “evidence; and”.

(17)  Schedule 1, item 9, page 38 (after line 14), at the end of section 163, add:

             (c)    how many of the proceedings described in paragraph (b) above resulted in a conviction; and

             (d)    how many of the arrests made during that year were made on the basis of information obtained in accordance with a stored communications warrant issued in relation to a serious offence; and

             (e)    how many of the arrests made during that year were made on the basis of information obtained in accordance with a stored communications warrant issued in relation to an offence, not being a serious offence, which is punishable by imprisonment; and

              (f)    how many of the arrests made during that year were made on the basis of information obtained in accordance with a stored communications warrant issued in relation to a civil contravention.

These amendments also go to the issue of annual reports and move to ensure that more specific information is required of agencies that have access to the stored communications regime when they are compiling their annual reports for parliament. Some of the information required is the number of warrants issued; the specified conditions or restrictions in the warrant; the categories of offences they were used to combat; and the number of telecommunications services accessed under the warrant. Again, transparency and specificity should be contained in the report.

Reporting to the parliament, we believe, is a crucial component for accountability. Information that would be reported to the parliament under this amendment would ensure that members of parliament are aware of the frequency—or, indeed, infrequency—as well as what manner the warrants regime is being used for and for what purposes. In a democracy, I think this is a basic measure and one that we should support.

Looking at the further amendments contained on this sheet, amendment (13) seeks to correct a drafting error contained in section 162. Section 119(5) requires that no stored communications warrants be issued within three days of a previously issued stored communications warrant. As such, any further applications will not be renewal applications but rather further warrant applications.

Amendments (14) to (17) move to amend the annual reporting procedures. They will require more information to be presented to the parliament so that the number of warrants issued can be monitored. Again, we think this is an important part of accountability in this democratic process and something that I would have thought all members of parliament would be interested in and supportive of.

11:26 am

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

We will support it. We have got following amendments that do the same thing. I am not going to add any significant comment at this point. The government is going to vote against it given its indication. I will make my point on it with my amendments.

11:27 am

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

We believe that the reporting proposed by the government is sufficient. When you look at the Telecommunications (Interception) Act reports that are being furnished to the parliament, they are indeed detailed. They outline agencies that have sought warrants and relevant statistics; applications made; applications refused; and the number of warrants issued with conditions or restrictions. It is a comprehensive report. We believe that to go as far as the Democrats are suggesting could well have some operational impact and we are not inclined to support these amendments.

11:28 am

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

What year was the last report that was tabled?

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

It was tabled for the year ending 2004—and 2005 is yet to be tabled. I understand it is going to be tabled very shortly and I will take up your concern with the Attorney-General.

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

I ask the minister to explain exactly which parts of the amendment would potentially have an operational impact.

11:29 am

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

For instance: ‘How many of the arrests made during the year are made on the basis of information obtained in accordance with a stored communications warrant?’ This is what I understand your amendment (17) relates to. There are a number of other items there about the number of arrests that were made on the basis of information. That involves some detail which has not been previously divulged. Also, when you look at the totality of it you see that it can give a picture to organised criminals of what law enforcement is relying on. We are very careful when we talk about what we do rely on. To give you an example, AUSTRAC was an agency which, up until a couple of years ago, was virtually unknown. Unfortunately in some respects, it is now a very well-known agency and people are a lot more careful about their financial transactions—and I refer to criminals in particular.

I guess we are saying here that there is a general education of people with mal-intent regarding what is available to law enforcement. They study the trends very closely, just as we find that people have sat in the back of courts listening to the evidence adduced. It is well known that that is something the IRA used to do in hearings. They would listen to the proceedings to find out how the police went about their methods of investigation. It is something which we are seeing with organised criminals today. People sit in the hearing and listen very closely to the trial. You cannot stop that, but I am telling you that it is an issue. We have picked up changes in the modus operandi of people who have seen a certain method employed by law enforcement—that is, it has been used as a means of arresting someone and then prosecuting them. The next thing you find is that criminals have changed their methods.

In relation to whether or not the information could be provided on an in camera basis, we have a parliamentary joint committee which oversees the Australian Crime Commission. I recall that it has dealt with evidence on an in camera basis. Rather than have this displayed for consumption at large, I think it is best to stay with the level of detail that we have in the reports that we give to the parliament. Of course, extensive questioning follows on from that. As I mentioned, we have the Parliamentary Joint Committee on the Australian Crime Commission and we have the Senate Legal and Constitutional Committee, which has the purview of estimates and legislation. The AFP, Customs and the ACC are no strangers to these committees. But I think that to institutionalise that level of detail could well result in a revelation of methods which could then be interpreted by organised crime. While it is important for us to have details available to the parliament, there are avenues of inquiry that can be employed without revealing the methods currently being used by law enforcement.

11:33 am

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

I do not necessarily believe that this is telling people something they do not already know—that is, informing them about a warrants regime that exists. Even if it is, I think it is the right of members of parliament and the Australian people to know. With these amendments—just in case people are wondering whether I am requesting that we describe in infinitesimal detail what is going on—I am suggesting that we have the right to know how many of the proceedings described above resulted in a conviction. We are talking about working out whether or not the warrants regime is successful or is increasing the number of arrests that are made as a consequence of it. Amendment (17) reads, in part:

       (d)   how many of the arrests made during that year were made on the basis of information obtained in accordance with a stored communications warrant issued in relation to a serious offence; and

        (e)   how many of the arrests made during that year were made on the basis of information obtained in accordance with a stored communications warrant issued in relation to an offence, not being a serious offence, which is punishable by imprisonment; and

        (f)   how many of the arrests made during that year were made on the basis of information obtained in accordance with a stored communications warrant issued in relation to a civil contravention.

I think information about those distinct categories is important. I do not think it is going to be the criminal how-to guide 101. I think it is just giving some numeric detail as to the number of arrests that are made in accordance with warrants for those various categories—a serious offence, not being a serious offence punishable by imprisonment, and a civil contravention. To me, they are basic distinctions of which the parliament should be aware. The number of convictions that occur as a consequence of the warrants regime is important. We deserve some greater detail so that we can assess the effectiveness or otherwise of this regime.

These amendments are not intended to have an impact on operational matters—far from it. They are transparency and accountability measures that enable members of parliament and the public to know if this is working and working well. They are not about giving away secrets. I think it is very basic information. I do not see this as a particularly fretful measure that gives information to people or teaches them something or involves methods that people will learn from. I am assuming that most people will know that there is the opportunity for their conversations and/or stored communications in other forms to be accessed. This is about not only how many times it is happening but also what arrests took place as a consequence of this warrants regime and under what categories. I do not think that really teaches anyone anything particularly bad. In fact, if anything, I think it lifts the lid a little so that we can actually find out what is going on in the operation of this warrants regime. I think parliament needs more information. We are dealing with quite extraordinary law and powers here, and parliament needs this information.

11:37 am

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

For the record, the government will take on board Senator Stott Despoja’s comments. There are some other difficulties in relation to the categorisation of offences. Work is being done in relation to the annual reporting. I was not implying that Senator Stott Despoja’s amendments were necessarily a ‘how to’ guide for criminals; all I was doing was alluding to the potential problems you can get when divulging information which, on the face of it, might seem quite innocuous and when compiled with other information can lead to a very good snapshot of how law enforcement operates.

We are working on the reporting arrangements. As I have said, we will continue to consider the committee’s reports. The concerns that Senator Stott Despoja raised will be taken on board during the course of those considerations.

Question negatived.

11:38 am

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

by leave—I move opposition amendments (18) and (20) on sheet 4882:

(18)  Schedule 2, page 63 (after line 30), at the end of the Schedule, add:

13 After section 61A

Insert:

61B Annual reports on warrant applications

        (1)    The chief officer of a law enforcement agency must, as soon as practicable, and in any event within 3 months, after each 30 June, give to the Minister a written report that sets out:

             (a)    the number of warrant applications made in that year to which subparagraph 46(1)(d)(ii) applied; and

             (b)    the reasons given to the issuing authority for each warrant application; and

             (c)    the occasions on which the agency has obtained, in execution of a warrant to which subparagraph 46(1)(d)(ii) applies, information to which it was not entitled under the warrant; and

             (d)    the occasions on which a warrant to which subparagraph 46(1)(d)(ii) applies has been issued, but no contact has been made with the person who is subject to the warrant, by the person under investigation for the serious offence.

        (2)    The Minister must cause a copy of the report provided to the Minister under subsection (1) to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

(20)  Schedule 2, page 63 (after line 30), at the end of the Schedule, add:

15 After section 61A

Insert:

61D Destruction of information obtained under a B-party warrant

        (1)    The chief officer of a law enforcement agency:

             (a)    must ensure that every record or report comprising communications obtained in accordance with a warrant in a case to which subparagraph 46(1)(d)(ii) applies is kept in a secure place that is not accessible to people who are not entitled to deal with the record or report; and

             (b)    must cause to be destroyed any record or report referred to in paragraph (a):

                   (i)    as soon as practicable after the making of the record or report if the chief officer is satisfied that no civil or criminal proceeding to which the material contained in the record or report relates has been, or is likely to be, commenced; and

                  (ii)    within the period of 5 years after the making of the record or report, or within each period of 5 years thereafter, unless, before the end of each 5-year period, the chief officer is satisfied that, in relation to the material contained in the record or report of a matter, civil or criminal proceedings have been, or are likely to be, commenced and certifies to that effect; and

             (c)    must caused to be destroyed any information in any form which is not material to the investigation in relation to which the warrant was issued.

        (2)    Subsection (1) does not apply to a record or report that is received into evidence in legal proceedings or disciplinary proceedings.

These amendments deal with the reporting regime and also a strengthening of the destruction regime. I think we have already effectively had that debate in the last short while. I am not going to add any more; the amendments are self-explanatory. I just press upon the government that it does need an adequate reporting and destruction regime.

Question negatived.

I move opposition amendment (10) on sheet 4882:

(10)  Schedule 1, page 43 (after line 12), at the end of Part 1, add:

Telecommunications Act 1997

9A After subsection 280(1)

Insert:

     (1A)    To avoid doubt, section 108 of the Telecommunications (Interception and Access) Act 1979 applies to access to stored communications despite any provision in Division 2.

9B After subsection 282(2)

Add:

     (2A)    Subsections (1) and (2) do not apply where section 108 of the Telecommunications (Interception and Access) Act 1979 applies.

This amendment is with respect to a warrant required for access to stored communications. It came from recommendation 1 of the committee report, to strengthen the area of stored communications, and it is a clarification of the application of the Telecommunications Act 1997 to covert access to stored communications. This was a matter raised by Electronic Frontiers Australia in their submission to the committee. It is a sensible amendment, but I do note that the government has failed to pick up most of the sensible amendments that have been moved by the opposition and the Democrats. I am not going to take up too much of the committee’s time in waiting and holding my breath for the government to see sense.

11:40 am

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

I hope you said you were not holding your breath. Otherwise we will need a replacement. I suggest that this is a good amendment. The Democrats will be supporting this amendment. It moves to implement some further entrenched safeguards into the Telecommunications Act regarding the prohibition on stored communications unless a stored communications warrant has been obtained. As has been previously stated, information should not be allowed to be accessed without a stored communications warrant, in order to protect the privacy of Australians. That is the bottom line and that is what some of us are trying to achieve here: to put some more safeguards into this bill to protect people’s privacy. We will be supporting the amendment.

11:41 am

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

We believe that the general prohibition introduced by this bill on access to stored communications is effective in ensuring that the provisions of the Telecommunications Act do not authorise access to stored communications. That is, this bill qualifies the Telecommunications Act as such. It covers an area so that the two operate in tandem, and this bill does bring with it a general prohibition against access to stored communications. I think that that deals with the concern that the opposition have with their amendment.

This is something that we will continue to look at. People have to realise that this bill is being introduced at this time because of the sunset date of 14 June. It is important to get this bill dealt with at this stage. We will still be considering further aspects of the Blunn report and the report of the Senate Legal and Constitutional Committee. That will happen and, as I said before, if needs be there will be amendments in the spring sittings. But we do believe that this bill qualifies the Telecommunications Act and that this amendment is not necessary.

Question negatived.

by leave—I move government amendments (13), (14) and (15) on sheet PA337:

(13)  Schedule 1, item 19, page 45 (line 14), omit “or 3-2”.

(14)  Schedule 1, page 45 (after line 20), after item 20, insert:

Intelligence Services Act 2001

20A Paragraph 14(2A)(a)

Omit “Part III of the Telecommunications (Interception) Act 1979”, substitute “Part 2-2 of the Telecommunications (Interception and Access) Act 1979”.

(15)  Schedule 1, page 46 (after line 9), after item 24, insert:

Telecommunications Act 1997

24A Section 5

Omit “Telecommunications (Interception) Act 1979”, substitute “Telecommunications (Interception and Access) Act 1979”.

24B Subsection 313(7)

Omit “interception services”, substitute “interception or access services”.

24C Subsection 313(7)

Omit “under the Telecommunications (Interception) Act 1979”, substitute “or a stored communications warrant under the Telecommunications (Interception and Access) Act 1979”.

24D Subsection 313(8)

Omit “interception services”, substitute “interception or access services”.

24E Subsection 313(8)

After “intercepted”, insert “or accessed”.

24F Subsection 324(2)

Omit “Telecommunications (Interception) Act 1979”, substitute “Telecommunications (Interception and Access) Act 1979”.

24G Section 332K (note)

Omit “Telecommunications (Interception) Act 1979”, substitute “Telecommunications (Interception and Access) Act 1979”.

These are consequential amendments relating to stored communications. Due to the change of the name of the interception act, consequential amendments to the Telecommunications Act 1997 and the Intelligence Services Act 2001 are made by these amendments.

Amendments to the Intelligence Services Act update references to the interception act. Amendments to the Telecommunications Act update references to the interception act and require telecommunications carriers to provide reasonable necessary assistance in the execution of a stored communications warrant. A similar requirement is already in place in relation to the execution of interception warrants, and I commend these three amendments to the Senate as being more of a technical nature.

Question agreed to.

11:43 am

Photo of Guy BarnettGuy Barnett (Tasmania, Liberal Party) Share this | | Hansard source

Next is Australian Greens amendment (2) to oppose schedule 1.

11:44 am

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

To be fair, my understanding is that the Greens were keen to move that amendment, albeit in the absence of their leader. My understanding is that someone will be on their way shortly to do that.

The Temporary Chairman:

I propose that we move to Democrat amendment (22).

11:45 am

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

That is what you get for being nice! Thank you, Chair, and thank you, Greens. I move Democrat amendment (22) on sheet 4869:

(22)  Schedule 2, page 62 (before line 5), before item 1, insert:

1A At the end of section 6DA

Add:

        (5)    Despite subsection (1), a person holding an appointment to the Administrative Appeals Tribunal may not issue a warrant under Part VI in cases to which subparagraph 46(1)(d)(ii) applies.

This amendment is intended to remove the ability of the AAT members to issue B-party warrants. There has been discussion in the committee stage and previously about the concerns as to whether that is an AAT responsibility. We believe this is important considering the statistics that show that AAT members issue the most warrants out of the issuing authorities. We do not believe that is particularly appropriate, and the effect of my amendment will be to remove that ability.

11:46 am

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

We oppose the amendment, as I think the Democrats would expect. It is a matter that the committee report said should be the subject of further review. I have said that before—I am not sure whether that was yesterday or the day before in this debate. Labor agrees that this area should in fact be looked at. I do not know the reasons for it. That in itself is not sufficient for a review, but the committee indicated that there were areas that did require a look at. On that basis, it should be looked at. The government could indicate more broadly that this area will in fact be looked at as well.

11:47 am

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

The government believe that members of the AAT, with a statutory qualification, are appropriate to issue these warrants, and we see no reason to change that. They have been in place for some time and have been operating effectively. We therefore oppose the amendment.

Question negatived.

The Temporary Chairman:

I propose that we go back to the Australian Greens amendment (2), which amends schedule 1.

11:48 am

Photo of Christine MilneChristine Milne (Tasmania, Australian Greens) Share this | | Hansard source

The Australian Greens oppose schedule 1 in the following items:

(2)    Schedule 1, page 4 (line 2) to page 61 (line 11), TO BE OPPOSED.

The Temporary Chairman:

The question is that schedule 1, as amended, stand as printed.

Question agreed to.

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

by leave—The amendments were not grouped this way on the running sheet, but all the B-party amendments in fact should have been grouped together. I suspect that is not the Clerk’s fault. I move opposition amendments (11), (13), (15) and (17) on sheet 4882 and (1) on new sheet 4893:

(11)  Schedule 2, item 3, page 62 (after line 26), at the end of subsection 9(3), add

      ; or (c)    communications made to or from a telecommunications service used or likely to be used by that person is likely to provide information relevant to the particular activities prejudicial to security which are stated in the application.

(13)  Schedule 2, page 62 (after line 26), after item 3, insert:

3A Subsection 9B(4)

After “previously been issued”, add “unless subparagraph 9(1)(a)(ia) applies to the further warrant, in which case no further warrant may be issued”.

(15)  Schedule 2, item 9, page 63 (lines 16 to 25), omit subsection 46(3), substitute:

        (3)    The Judge or nominated AAT member must not issue a warrant in a case in which this section applies unless the person making the application on behalf of the enforcement agency sets out evidence in an affidavit at the time of its application, or in the case of a telephone application, within one day after the day on which the warrant is issued, that:

             (a)    the agency has exhausted all other methods of identifying the telecommunications services used, or likely to be used, by the person involved in the offence or offences referred to in paragraph (1)(d); and

             (b)    interception of communications made to or from a telecommunications service used or likely to be used by that person would not otherwise be possible; and

             (c)    communications intercepted from the communications service will not breach any person’s legal professional privilege.

(17)  Schedule 2, page 63 (after line 30), at the end of the Schedule, add:

12 At the end of subsection 49(5)

Add “, unless the warrant is issued in a case to which subparagraph 46(1)(d)(ii) applies, in which case no further warrant may be issued”.

(1)    Schedule 2, page 63 (after line 25), after item 9, insert:

9A After section 46

Insert:

46AB Limitation on use of information derived from B-party warrants

Types of persons—A-party, B-party, C-party

        (1)    A person who would be likely to assist in connection with the investigation of a serious offence or serious offences is known as an A-party.

        (2)    A person who receives a communication from, or sends a communication to, a person described in subsection (1) is known as a B-party.

        (3)    A person other than a person described in subsection (1) who receives a communication from, or sends a communication to, a person described in subsection (2) is known as a C-party.

Use derivative-use indemnity applies to communication from C-party

        (4)    A warrant to which subparagraph 46(1)(d)(ii) applies can not be issued in respect of a person described in subsection (3) merely as a result of the action described in subsection (3).

        (5)    The provisions of this Act do not apply to any communication made by a person described in subsection (3) merely as a result of the action described in subsection (3) and any information given by such a person is not admissible in evidence against the person in:

             (a)    any criminal proceedings other than a proceeding for a serious offence; or

             (b)    any civil proceedings.

These amendments are recommendations from the committee report. As I have already said at least once today, it was a majority report. The government backbenchers and Labor agreed with the recommendations and agreed that B-party warrants should have protections consistent with the Blunn review—that is, that they go to ensuring that they only be utilised in limited and controlled circumstances. Opposition amendments (13) and (17) concerning no renewal of B-party warrants are consistent with ensuring that these amendments are not used as rolling warrants—in other words, they have a limited circumstance.

Labor believe that if we are to have a 45-day B-party warrant, then its renewal should also be limited. If a law enforcement agency cannot get the information in that time, then it should have a look at its own procedures. It begs the question, of course, of whether a real link can be made between party A and party B in that period. If there is a belief that a second warrant is required after the end of 45 days, then they can go back to the issuing authority and indicate that there is a requirement to continue to have that interception. The issuing authority then has an opportunity of hearing from them to ensure that it is required and consistent with Blunn and consistent with ensuring that the person’s privacy is kept at the forefront in the issue.

B-party warrants have provided another area of concern. In recommendation 18 the committee report highlighted an issue that also needs to be addressed, the tightening of B-party warrants issued by the Attorney-General under section 9 of the act. In relation to this warrant class, which ASIO uses for national security purposes, the Labor amendment tightens the definition to ensure that the B-party service that is to be intercepted is only able to be intercepted after the Attorney-General has satisfied him or herself that the B-party service:

... is likely to be used to communicate or receive information relevant to the particular activities prejudicial to security which triggered the warrant.

A number of submitters raised this matter that there should be—to use, from memory, their words—that link to ensure that B-party warrants are not used as a fishing expedition and are only used where it has been able to be demonstrated to the issuing authority that they have met the requirements under the current law and the proposed amendments to the current law and to reinforce the principle of limited and controlled circumstances.

Looking at the amendments which have been proposed in the broader area, (15) spells out the requirements for the issuing of section 46 warrants. This provides, in accordance with the committee recommendations:

The Judge or nominated AAT member must not issue a warrant in a case in which this section applies unless the person making the application on behalf of the enforcement agency sets out evidence in an affidavit at the time of its application, or in the case of a telephone application, within one day ... that:

(a)      the agency has exhausted all other methods of identifying the telecommunications services ...

(b)      interception of communications made to or from a telecommunications service used or likely to be used by that person would not otherwise be possible; and

(c)      communications intercepted from the communications service will not breach any person’s legal professional privilege.

In total, it seeks to ensure that, as the Attorney-General spelt out, B-party warrants are utilised as a last resort and legal professional privilege in this instance is sufficiently protected. They are sensible amendments to B-party warrants to strike that balance between privacy and the needs of law enforcement agencies. The Senate committee saw that there was a need to ensure that that balance was there. The committee made a number of recommendations to ensure that people’s privacy was protected sufficiently whilst not impeding law enforcement agencies’ ability to fight crime. These amendments reflect those recommendations and try to achieve that balance.

It is disappointing that the government has not sought to pick them up. They are sensible amendments. They go to ensuring that the recommendations of the Blunn review are met and that, as I have said a couple of times this morning, B-party warrants are utilised in limited and controlled circumstances. That is sensible. This government has not provided the right balance in the legislation.

11:56 am

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

The Australian Democrats will be supporting these amendments. To clarify, are we dealing with amendments (11), (13) and (17) now?

Photo of Guy BarnettGuy Barnett (Tasmania, Liberal Party) Share this | | Hansard source

Amendments (11), (13), (17), (15) and (1) on the new sheet.

11:57 am

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

I will clarify. They are all B-party amendments. The running sheet does not reflect them in the way it should. They all relate to improving the position, they come from the committee report and, as I have said, they are sensible. They deserve the support of all parties in this chamber, and particularly the coalition backbench, who sat with us and saw that B-party warrants did need these protections. They do not detract from the ability of law enforcement agencies to do their work and to fight crime. They do ensure that privacy is maintained, because this is a sensitive area. It requires careful scrutiny to ensure that we get it right. I do not think in this instance that the government has got it right.

We have been talking a lot about B party. Party A is the person under criminal investigation. The B party is the nonsuspect or innocent person who might be in communication with A. You then have parties C, D, E, F and so on, who are not in communication with A when the warrant is first issued. The warrant is predicated on the basis that there is communication going on between A and B.

We need, as the law enforcement agencies have said, limited control in certain circumstances to access the communications of B, but what about C, D, E and F? These amendments ensure that there is protection for those people. When you start looking at innocent person B, where do you stop in terms of the innocent persons C, D, E, F and so on? It is so far down the line. They do require protection because of the very nature of this type of warrant. This warrant is not directed at a person who is under criminal investigation; it is directed at a person who is in communication with a person who is under criminal investigation. But C, D, E and F are being drawn into that frame, and they need not be. If they are being drawn into that frame, they need the additional protections.

12:00 pm

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

Indeed, they do need those additional protections. Obviously, the Democrat approach to this bill has been an attempt to entrench as much protection of privacy for individual Australians as possible. Senator Ludwig makes the important point that we are talking about nonsuspects in these dealings. I think it is very important that we seek to do what Senator Ludwig, referring to Labor amendment (1) on sheet 4893, suggests: place some kind of limit on the derivative use of information obtained under a B-party warrant. I think that is incredibly important. We definitely support that amendment.

Introducing the concept of A parties, B parties and C parties into the substance of the act is, you bet, really important. Essentially, that seeks to stop any C party—a person who is not the person of interest and happens to contact the B party—from having information obtained during an interception used against them in any criminal offence proceedings, other than for a serious offence, or any civil proceedings. We think that is a good amendment and we will certainly be supporting it.

We support amendment (15), on the same sheet, as well. It increases the requirements for the issuing of B-party warrants. I note that those requirements are the same as those at the end of our amendment (23), which will come up shortly. I note, however, that the Labor Party amendment still allows members of the AAT to issue warrants. Obviously, from the debate on the amendments that we have just had, the Democrats have grave concerns. We do not support having the AAT as an issuing authority. We believe, not only from looking at the statistics, that it is lowering a threshold. It is making it easier for warrants to be issued or obtained.

So, with that obviously different view in relation to amendment (15) on behalf of the opposition, we certainly support amendment (11), which makes B-party warrants available only to enforcement agencies when investigating an issue to do with national security. We think that is a reasonable proviso. We think that is quite a good safeguard and we support that. It is a relevant amendment. It increases the threshold for the B-party warrants. Any protection for Australians against invasive measures such as the B-party warrants is welcomed at this late stage of the legislative process. The text of the amendment refers to the activities that are prejudicial to security. The inference from the description of the amendment suggests that it is for national security.

We support amendment (13). It prevents any further applications for B-party warrants to proceed. That leaves me with amendment (17). Again, the Democrats support that amendment. Senator Ludwig is right to refer to the deliberations of the Senate committee and the views of backbenchers in relation to the prevention of the renewal of B-party warrants. The Democrats have sought to achieve a similar outcome with our amendments. Our amendments allow for the renewal of B-party warrants where information obtained in the interception is material to the investigation and it is likely that further interception will result in further material information. Indeed, this was a recommendation that arose out of the committee proceedings—specifically, I think, in the submission provided by Electronic Frontiers Australia.

The period of operation of B-party warrants is limited to 14 days in our case, but I do not believe that there is a Labor Party amendment that deals with the period of operation. I still think that is important and deserves some consideration. I think I have covered all the new amendments—(11), (13), (15) and (17) on sheet 4882 and (1) on new sheet 4893. With those comments—again desperate to enshrine some protection; they are not protections that have come from out of nowhere; they are protections that have been signed off in most cases by a committee inquiry that had the support of both the government backbenchers and the Labor Party—the Democrats support the amendments before us.

12:05 pm

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

The opposition amendments, although they have been moved together, deal with discrete areas in relation to B-party warrants. Initially, the concern is about the different regime applying to ASIO and law enforcement agencies in obtaining the stored communications warrants. I will deal with that first. The government’s view is that we should continue the different regimes for law enforcement agencies and ASIO. At the moment, we have a system where ASIO obtains warrants by application to the Attorney-General. Various requirements have to be met. That involves the Attorney-General’s Department and, in particular, ASIO. That has worked well. It would be unhelpful to now bring in a new regime for obtaining a stored communication warrant that is of a lesser standard or impact than a telephone intercept, which ASIO has under its current regime. It was thought best to continue that same regime and include stored communication warrants as well as the TI regime that ASIO has at the moment. We also have to remember that ASIO deals with inquiries into national security—

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

To preserve those regimes.

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

Senator Ludwig, we will get to that in a moment. I am just outlining the government’s rationale for this approach, because the Democrats, and others too, have been critical of it. ASIO inquires into matters of national security, and of course we have seen issues arise where evidence gained during intelligence operations cannot be brought into a court of law because of the different requirements involved in national security as opposed to criminal investigations. When it is a criminal investigation, you are then dealing with the prospect of that evidence being used against an individual for the purposes of prosecution. Understandably, we have a system which involves a judicial or quasi-judicial person. We have been talking about the AAT being the issuing authority. In a state where an AAT member is not available, law enforcement can go to a state magistrate—that is provided for as an alternative to an AAT member. We believe that that is appropriate for a stored communications warrant regime, whether or not it applies to a B-party warrant.

The next question is: do you restrict that evidence, the information that is gained, in the use of the B-party warrant? We would say that it should not be restricted. We say that what we are dealing with here is serious crime and national security—and, increasingly, the two are one, if I can put it that way. The CIA itself has said that transnational crime is a threat to national security. Organised crime in today’s environment is not the organised crime that we were dealing with 10 years ago. We have to have modern methods with which to fight organised and serious crime, particularly in an environment where criminals may well use telecommunications—which they increasingly are.

So the government does not accept that you should use one aspect of the regime for national security and not for law enforcement; the government does not accept that you should restrict the use of information from B-party warrants; and the government defends the fact that it maintained the different regimes for ASIO and law enforcement. We have an issuing authority regime, if you like, for law enforcement agencies and the Attorney-General application for ASIO. We believe that that has worked well and should continue to be reflected in this bill. But, as I have said, these matters are important ones. They are going to be considered on an ongoing basis by the government, and we will do just that. But we oppose amendments (1), (11), (13), (15) and (17) proposed by the opposition for the reasons I have outlined.

12:10 pm

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

These are recommendations that the government could in fact consider now rather than reject out of hand. The Labor Party took a position in respect of what the Senate committee report on the bill came up with, and in a very short time frame. We came up with amendments that would go to improving the protection of privacy while still striking the right balance, as I have said. The minister thinks that we are seeking to tinker with the two regimes; that is not the case. We agree that there should be two regimes. We see the need for national security interests to be separate from law enforcement interests and do not seek to gavel that position. And it is clear, in part, that B-party intercepts for law enforcement agencies do require protections.

The minister indicated that the government opposes these amendments. I think that perhaps cabinet government does, perhaps executive government does, but not many of his backbench agree with that position. I am sure they agree with ours, but they are not here to support that, which is a pity.

I am going to call for a division on these; I think they are important. But the government is not going to agree with our position on B-party warrants, so I want to foreshadow an amendment to delete schedule 2. Obviously, that will not gain support either, but we can deal with that in the same way, if the Clerk could circulate the amendment that would delete schedule 2.

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

Do you mean the Greens amendment?

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

I would rather have my own, quite frankly!

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

I am happy to co-sponsor it, if you need a friend!

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

I am happy for it to be co-sponsored. It can be circulated in the chamber now, if the government wants. But what I am foreshadowing is that we can deal with it in a compact way: we can have a division on the B-party warrants, then I can move that amendment to delete schedule 2 and we can have a one-minute division. That way there will not be two long divisions. Obviously, the government is not going to accede to the proposed improvements to the B-party regime, but I do not want to take up a significant portion of the Senate’s time.

Photo of Guy BarnettGuy Barnett (Tasmania, Liberal Party) Share this | | Hansard source

Senator Ludwig, can I just draw to your attention that that is a part of the bill where the question is that it will stand as printed, so it not an amendment. You will be opposing the schedule, and the government will presumably be supporting the printing of the bill as it stands.

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

That can be circulated now.

The Temporary Chairman:

We will deal with the schedule to be opposed separately. The question is that opposition amendments (11), (13), (15) and (17) on sheet 4882 and amendment (1) on sheet 4893 (revised) be agreed to.

12:20 pm

Photo of John HoggJohn Hogg (Queensland, Deputy-President) Share this | | Hansard source

The opposition opposes schedule 2 in the following terms:

(1)
Schedule 2, page 62 (line 2) to page 63 (line 30), TO BE OPPOSED.

The question now is that schedule 2 stand as printed.

12:23 pm

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

by leave—The Democrats amendments oppose schedule 2 in the following terms:

(18)  Schedule 2, item 1, page 62 (lines 5 to 11), TO BE OPPOSED.

(19) Schedule 2, item 2, page 62 (lines 5 to 15), TO BE OPPOSED.

(20) Schedule 2, item 3, page 62 (lines 3 to 26), TO BE OPPOSED.

(21) Schedule 2, item 4, page 62 (lines 27 and 28), TO BE OPPOSED.

The intent of the Democrat amendments is to remove the Attorney-General’s power to issue B-party warrants for ASIO. I want to make it very clear that we are talking about B-party warrants for ASIO and removing the ability of the Attorney-General to issue those warrants. We believe that it is an important safeguard that should be implemented in order to maintain a relatively high level of oversight. These changes should be passed because of the high possibility of privacy invasions under B-party warrants. Once again, I want to make it very clear that we are talking about ASIO and the Attorney-General’s power to issue those warrants to them. This is different from the issue of B-party warrants generally; it is specifically dealing with ASIO B-party warrants. Therefore, I hope the Senate will, with the recognition of that specificity, recognise the need to take that power away from the Attorney-General.

12:26 pm

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

We do not support these amendments. Unfortunately, they go further than we think is required in these circumstances. I will not talk to them at length. The points we make in relation to our amendments go to the committee report. The hard work done by the committee, including the backbench, brought forward recommendations which were reasonable. Labor sought to take those recommendations and provide an opportunity for the government to support them. The government has chosen not to support them today.

In this instance, as I said previously, in terms of the regimes in place, it is important to ensure that there is a distinction between the law enforcement regime and the national security regime. Those regimes have our support. In terms of the amendments, when you look at the provisions, they go beyond the majority recommendations. I understand that they are consistent with your additional dissenting comments.

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

Supplementary; additional.

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

Yes. However described, they are not things we can support.

12:28 pm

Photo of Christine MilneChristine Milne (Tasmania, Australian Greens) Share this | | Hansard source

I want to put on the record the Australian Greens’ opposition to schedule 2 as it stands. I will be supporting subsequent amendments and opposing the schedule as a whole because it does not draw an appropriate balance between security issues and privacy and basic freedoms.

Third parties having their phones tapped and emails read without their consent or knowledge simply because they contact somebody who government security agencies have an interest in is completely inappropriate in a democratic society. Innocent people who are unlucky enough to communicate by phone or email with someone suspected of a crime or of being a threat to national security are going to find themselves, without their knowledge, under this kind of scrutiny. I find that excessive.

We have to have security laws, but under these security laws everyone, including the tax office, will be able to trawl through the private emails, SMSs and phone conversations—and everything else—of people who have no idea that that is happening to them, and I find that appalling in supposedly a free country. That is the view that the Australian Greens take in relation to this. We do not believe that the government and its agencies should have the power to intervene with third parties in this way.

12:29 pm

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

I have outlined previously the government’s position in relation to the ASIO regime and the regime for law enforcement. We believe that the Attorney-General is an appropriate person in this case. If you can do it for telephone intercepts, you can do it for stored communications and warrants albeit that it relates to a B-party. We believe that we should stay with the same regime that we have.

Photo of Andrew MurrayAndrew Murray (WA, Australian Democrats) Share this | | Hansard source

The question is that schedules 2, items 1 to 4, stand as printed.

Question agreed to.

12:31 pm

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

by leave—I move Democrat amendments (23) and (24) on sheet 4869 standing my name:

(23)  Schedule 2, item 5, page 62 (line 29) to page 63 (line 1), omit the item, substitute:

5 At the end of section 46A

Add:

46B Warrant for B-party interception

        (1)    Where an agency applies to an eligible Judge for a warrant in respect of a person and the Judge is satisfied, on the basis of the information given to the Judge under this Part in connection with the application, that:

             (a)    Division 3 has been complied with in relation to the application; and

             (b)    in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and

             (c)    there are reasonable grounds for suspecting that a particular person is using, or is likely to use, more than one telecommunications service; and

             (d)    there is a substantial likelihood that information to be intercepted under the warrant would assist in connection with the investigation by the agency of a serious offence by a person who is expected to contact the person subject to the warrant; and

             (e)    having regard to the matters referred to in subsection (2), and to no other matters, the Judge should issue a warrant authorising such communications to be intercepted;

the Judge may, in his or her discretion, issue such a warrant.

        (2)    The matters to which the Judge must have regard are:

             (a)    how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to any telecommunications service used by the person in respect of whom the warrant is sought; and

             (b)    the gravity of the conduct constituting the offence or offences being investigated; and

             (c)    how much the information referred to in paragraph (1)(d) would be likely to assist in connection with the investigation by the agency of the offence or offences; and

             (d)    to what extent methods (including the use of a warrant issued under section 46) of investigating the offence or offences that do not involve the use of a warrant issued under this section in relation to the person have been used by, or are available to, the agency; and

             (e)    how much the use of such methods would be likely to assist in connection with the investigation by the agency of the offence or offences; and

              (f)    how much the use of such methods would be likely to prejudice the investigation by the agency of the offence or offences, whether because of delay or for any other reason.

        (3)    The Judge must not issue a warrant in a case in which this section applies unless the person making the application on behalf of the enforcement agency states in an affidavit at the time of its application, or in the case of a telephone application within one day after the day on which the warrant is issued, that:

             (a)    the agency has exhausted all other methods of identifying the telecommunications services used, or likely to be used, by the person involved in the offence or offences referred to in paragraph (1)(d); and

             (b)    interception of communications made to or from a telecommunications service used or likely to be used by that person would not otherwise be possible; and

             (c)    communications intercepted from the communications service are not likely to breach any person’s legal professional privilege.

(24)  Schedule 2, item 6, page 63 (lines 2 and 3), omit the item, substitute:

6 Section 47

Omit “or 46A”, substitute “, 46A or 46B”.

Amendment (24) is a consequential amendment. Amendment (23) moves to increase significantly the threshold that is required in order to obtain a B-party warrant. I think that important aspects to note are the requirements that: firstly, there is a substantial likelihood that the information to be intercepted under the warrant would assist in connection with the investigation by the agency of a serious offence; and, secondly, that it is expected that the person of interest will contact the third party. We believe that operation of the B-party warrants does pose a serious risk for privacy rights in Australia. Where there are no adequate or appropriate measures to ensure that these privacy rights are not respected, then the schedule should not be passed.

We have heard various arguments for that today. It is not as if we have come in here deliberately trying to gut or tear down the act or have a deleterious impact on operational matters. But it is evident that the legislation in its current form does not strike a proportioned balance between crime fighting and security and safety on the one hand, and the civil liberties and privacy rights of Australians on the other hand. We have lost that balance. The attempt in this debate by parties such as the Democrats to inject some safeguards into this legislation has effectively failed—though we have still got almost a page of amendments to go in terms of the running sheet.

Having said that, I note that some of the really substantial changes that could have been made to give people some confidence in the operation of this Telecommunications (Interception) Amendment Bill have not been made, and I think that is significant. It is significant and certainly of great concern to the Australian Democrats who have been involved in the discussions and deliberations on this bill from the beginning—and I include predecessors in that involvement. In terms of this specific piece of legislation, we have been present at the inquiry and have prepared a report—and along with Senator Ludwig, I have to say, I also smirk a little at it too. The Supplementary report with additional comments of dissent by the DemocratsI think we were aiming for the longest name of a Senate committee report. Nonetheless, it did sum up the fact that we endorse heartily the recommendations contained in the chair’s report and I put on record again that it was a majority report. We have backbenchers in here today who signed off on the legislative report but were forced to vote against the recommendations contained in that report. Doesn’t anyone have a problem with that? I think that it is quite extraordinary. Some of the safeguards built into that majority report and proposed for the legislation have since been voted against by the people who mooted them.

Maybe the Senate committee process is a farce now. I am not suggesting that we abandon it, but it seems extraordinary that we spent the day, albeit a short period of time, on a truncated inquiry with not enough time for verbal and written submissions and not enough time for us to deliberate over some of the questions on notice and questions that were responded to. I do acknowledge the work of the officers because I know that we gave questions without notice and on notice and they were responded to with what I would describe as alacrity considering the time frame. But still it is not enough to turn up on Monday, table a report and expect that report to be dealt with—discussed and digested—and then have us rock up on Tuesday morning—I think Monday evening was the original suggestion—and debate a significant piece of legislation that poses a great risk to privacy rights in this nation.

These are some of our last attempts to put some constraints and some safeguards on B-party warrants. Again, they are not intended to gut or destroy the legislation but build in safeguards. That has not happened. Yes, amendment (23) that the Democrats are moving does go further than the majority report, as Senator Ludwig has pointed out. There is good reason for that because the majority report did not go far enough. Those recommendations contained in the majority report signed off by coalition and Labor backbenchers were good recommendations and even they have been flouted in the chamber today. These are further Democrat changes proposed to the operation of B-party warrants. I think that they are reasonable changes that would increase the threshold in a way that would have a positive impact in terms of privacy as well as the security and safety of Australians. I commend the amendments to the chamber.

12:36 pm

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

Given that Labor amendments in this area were defeated, we think that some improvement does come from the Democrat amendments to the protections not otherwise afforded and therefore we support these amendments.

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

I am obliged to other senators for the brevity of debate to the extent that we have been to the point but on these particular amendments I think that I should put before the committee the regime in relation to B-party warrants. We are dealing with a warrant which is in relation to stored communication related to a third party who is not the person under investigation.

The B-party amendments in this bill will only be used as an investigative tool of last resort and will be subject to strict controls and available only for the investigation of the most serious crimes. Specifically, a B-party warrant will only be issued to an agency where an agency believes it is necessary to intercept the communications of an associate of a suspect, and the agency must demonstrate that it has exhausted all other practicable methods of identifying the telecommunication services used or likely to be used by the suspect.

In addition, as per the existing interception regime requirements, an interception warrant will only be granted to an agency when an issuing authority is satisfied that (1) there are reasonable grounds for suspecting that a particular person is using or likely to use the telecommunications service and (2) information that would be obtained by interception would be likely to assist in connection with the investigation by the agency of the seven-year offence in which the suspect is involved.

The issuing authority must also have regard to the following additional factors: how much the privacy of any person would be likely to be interfered with by the interception; the gravity or seriousness of the offences being investigated; how much the intercepted information would be likely to assist with the investigation by the agency of the offence; to what extent alternative methods of investigating the offence have been used or are available to the agency; how much the use of such methods would be likely to assist in the investigation by the agency of the offence; and how much the use of such methods would be likely to prejudice the investigation by the agency of the offence. That is a list which has to be complied with, and it is not in the alternative. That is a comprehensive list which requires the issuing authority to have regard to a number of crucial factors.

We believe that the B-party warrant regime we have in place has safeguards and measures which are of such sufficiency as to protect the rights of the third parties who are not suspects but who may be believed to be associated with the person who is under investigation. I want to put that on the record. I think I have outlined the government’s stance previously. The government is opposed to Democrats amendments (23) and (24).

While I am on my feet, I will clarify a statement I made yesterday. Last night, during the debate on the proposed government amendment for AFP network protection practices, I advised the committee that I understood that the AFP had discussed this issue with the AFP Association prior to the bill being introduced to the Senate. That was following a question from Senator Ludwig. The purpose of the government amendment, by way of background, is to allow the AFP to continue to do what it currently does in relation to network protection and maintaining professional standards in the AFP. Its purpose is to support existing policy and practice within the AFP, of which all AFP employees and the AFP Association have been aware of since its inception in 2003. However, in relation to the question that Senator Ludwig asked, I must advise the committee that the AFP did not specifically discuss it with the AFP Association prior to the bill being introduced into the Senate. When I gave that advice to the committee, I was relying on advice that had been given to me at the time. I think that sorts that issue out. And the government is opposed to Democrats amendments (23) and (24).

12:41 pm

Photo of Christine MilneChristine Milne (Tasmania, Australian Greens) Share this | | Hansard source

I appreciate the minister’s explanation, but I would like to ask a couple of questions in view of that explanation. First of all, can the minister tell me whether there are any white-collar corporate fraud crimes that incur a penalty of seven years or more? If so, what would preclude the tax office from using these provisions to access stored communications—emails et cetera—from third parties who may inadvertently contact someone? Secondly, can the minister explain why this provision applies to federal and state members of parliament who, in the course of their duties, may well contact a range of people of all kinds? Does that mean that their communications are subject to government intervention and oversight?

12:42 pm

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

If people could stick to the program, it would be easier. We are not talking about stored communication; we are talking about B-party intercepts—real-time interceptive communication. That should be the question, I suspect. I think the minister went to stored communication in his answer earlier, too. This is about B-party intercepts. If we could hold that point, if everybody concentrates on where we are at, we might be able to finish this debate.

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

I will answer the Greens questions, but at this stage perhaps we could deal with Democrat amendments (23) and (24). There are a number of questions from the Greens. I will take them on notice and, in the course of this committee, I will advise the committee of the answers. But, at this stage, I suggest we deal with Democrat amendments (23) and (24), and I will deal with the other questions separately.

Question negatived.

12:43 pm

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

I move Democrat amendment (25) on sheet 4869:

(25)  Schedule 2, item 10, page 63 (line 29), omit paragraph 49(3)(a), substitute:

             (a)    if section 46B applies, up to 14 days; or

This amendment is quite simple. It limits B-party warrants to 14 days.

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

The Labor Party are in a position to support this amendment, given that our B-party amendments failed. It is a simple amendment, so I will not go to it in detail. It deserves support.

12:44 pm

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

We believe that 45 days is appropriate. It is half the 90-day period for a real-time interception. Of course, there is nothing to stop law enforcement going for a shorter period of time, but that 45-day period is a maximum period. We think the 14-day period it too short.

Question negatived.

by leave—I move government amendments (16) and (17) on sheet PA337:

(16)  Schedule 2, item 7, page 63 (lines 8 and 9), omit subparagraph 46(1)(d)(ii), substitute:

                  (ii)    another person is involved with whom the particular person is likely to communicate using the service; and

(17)  Schedule 2, page 63 (after line 30), at the end of the Schedule, add:

11 After paragraph 100(1)(ec)

Insert:

           (ed)    in relation to applications of a kind referred to in paragraph (a), (b), (c), (d) or (e), the relevant statistics about applications of that kind that relate to warrants in relation to which subparagraph 46(1)(d)(ii) would apply if the warrants were issued; and

           (ee)    how many Part 2-5 warrants issued during that year on application made by the agency or authority were warrants in relation to which subparagraph 46(1)(d)(ii) applied; and

            (ef)    how many Part 2-5 warrants renewed during that year on application made by the agency or authority were warrants in relation to which subparagraph 46(1)(d)(ii) applied; and

12 After paragraph 100(2)(ec)

Insert:

           (ed)    in relation to applications of a kind referred to in paragraph (a), (b), (c), (d) or (e), the relevant statistics about applications of that kind that relate to warrants in relation to which subparagraph 46(1)(d)(ii) would apply if the warrants were issued; and

           (ee)    how many Part 2-5 warrants issued during that year were warrants in relation to which subparagraph 46(1)(d)(ii) applied; and

            (ef)    how many Part 2-5 warrants renewed during that year were warrants in relation to which subparagraph 46(1)(d)(ii) applied; and

13 At the end of paragraphs 101(1)(a), (b) and (c)

Add “and”.

14 After paragraph 101(1)(d)

Insert:

           (da)    in relation to periods of a kind referred to in paragraph (a), (b), (c) or (d), the averages of the periods of that kind that relate to warrants in relation to which subparagraph 46(1)(d)(ii) applied; and

15 At the end of paragraphs 101(2)(a), (b) and (c)

Add “and”.

16 After paragraph 101(2)(d)

Insert:

           (da)    in relation to periods of a kind referred to in paragraph (a), (b), (c) or (d), the averages of the periods of that kind that relate to warrants in relation to which subparagraph 46(1)(d)(ii) applied; and

Government amendments (16) and (17) relate to B-party interception. They impose a requirement for separate statistical reporting of B-party interception to ensure that the use of these powers is reported. Each year, all law enforcement agencies using the interception regime will be required to provide statistics on the number of B-party warrants applied for by law enforcement agencies: the number issued, the number of renewal warrants and the average duration of those warrants. These statistics will be reported in relation to each agency and in total. In addition, amendment (16) clarifies the operation of the B-party interception provisions to ensure the effective operation of these measures. These amendments are consistent with comments by Mr Blunn in his report and also with concerns raised during the Senate committee consideration of this bill. I commend the amendments to the committee.

12:46 pm

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

The Australian Democrats will be supporting these amendments. The first one does not do anything to raise the threshold in relation to B-party warrants but it does make B-party warrants slightly more clear. Amendment (17) slightly increases the amount of information that is required in the reports. We think it is better than what already exists. Of course, I have already tried to tackle this issue through various means. The Democrats will support these two amendments even though they do not quite go far enough.

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

These are procedural changes. We do not oppose them; we do not support them either, particularly. We think that the government should have picked up our amendments, quite frankly, but I am not going to go there again. These matters might provide some improvement to the existing regime and on that basis we will not oppose them.

Question agreed to.

12:47 pm

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

I move Democrat amendment (27) on sheet 4869, standing in my name, on behalf of the Democrats:

(27)  Schedule 2, page 63 (after line 30), at the end of the Schedule, add:

12 After subsection 49(2A)

Insert:

      (2B)    Without limiting subsection (2), a warrant issued under section 46B must state that the warrant does not include the storage of:

                   (i)    any communications that do not involve the person suspected of an offence under paragraph 46(1)(b); or

                  (ii)    any communications not material to the investigation on which the application for the warrant was based;

and that recordings of any such communications must be destroyed immediately once the agency determines that this section applies.

This amendment requires that any communications not material to an investigation be destroyed. We think this is a particularly important provision because currently there are not adequate destruction provisions for this material. I have spoken about this in the committee stage and in other fora. I believe that the maintenance or holding of that information is problematic, especially when we are talking about communications that are not required because they are not material to the investigation at hand. There is no reason why they should not be destroyed, and that is the intent of this amendment.

12:48 pm

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

We do not support this amendment. In fact, we think it has already been dealt with. If you look at it you see that subclause 27(2B) provides:

Without limiting subsection (2), a warrant issued under section 46B must state that the warrant does not include the storage of:

(i)   any communications that do not involve the person suspected of an offence under paragraph 46(1)(b) ...

It goes on to the effect that communications outside the investigation are not to be stored. That area has already been dealt with.

12:49 pm

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

The government are opposed to this amendment. I think we have covered this adequately before. I think there is a requirement in the bill for the destruction of this sort of material. The requirement is that it be ‘forthwith’. We think that is sufficient protection in the circumstances. We recognise of course that irrelevant material should not be left hanging around. We believe it should be destroyed promptly if it is irrelevant.

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

I am not going to prolong this debate; and I know that I brought this issue up during the Senate committee. The minister has referred to the term ‘forthwith’ and I am just wondering what, in his mind, constitutes ‘forthwith’. Is there a time line associated with that? What does the minister associate the word ‘forthwith’ with in his mind? Does it mean tomorrow, immediately, 10 days or a week? I am not suggesting that law enforcement agencies are going to be hanging on to this information in an inappropriate way, but I would not mind a stipulation of what the minister’s understanding of that terminology is. Given that I have asked that of others, I may as well ask it of the minister.

12:50 pm

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

That is a good question; and it is a difficult one. The fact is that we are talking about what constitutes irrelevant material. During the course of an investigation it is not immediately apparent that evidence that is come across may be irrelevant material at the time. But it is provided for in the bill that material which is irrelevant should be destroyed forthwith. As soon as it becomes apparent that it is irrelevant it should be destroyed forthwith. If there was something there which related to another party and which might be of some interest and could be relevant, and you had not yet concluded the line of investigation, you would hold on to it until you were of a view that it was relevant and you wanted to put it into a brief for the prosecution. Or you would hold on to it until you thought you did not need it anymore. If that line of investigation had been exhausted and it was of no relevance then you would destroy it at that point. To simply say that you have a certain amount of time—to give a definite time limit—would make it almost impossible to carry out investigations.

I will give an example. The investigation into the Norfolk Island murder recently, in which there was an arrest, went on for some time. There was a good deal of investigation overseas, although I will not go in to it because it is now before the courts. That was a classic case where continual police work was required in sifting through evidence and making inquiries. A statement, document or stored item of information that you come across may not have relevance until you have discovered other pieces of the jigsaw puzzle, when you find that it is after all quite relevant. But as soon as it is apparent that it is irrelevant it should be destroyed forthwith.

Photo of Andrew MurrayAndrew Murray (WA, Australian Democrats) Share this | | Hansard source

Senator Stott Despoja, before you speak, I should indicate to you that this amendment of yours refers to section 46B. An earlier amendment relating to section 46B was not agreed to and therefore this amendment probably should fall away. By all means, pursue questions if you wish. I would suggest that you might want to withdraw the amendment.

12:53 pm

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

I was conscious of that and I am happy to withdraw the amendment. I think the questions were still relevant; they were not necessarily specific to that amendment. In fact, I always get nervous when the minister says something I have asked is a good question and then I look to you, Minister, for a specific answer to my question. I am glad you acknowledge that forthwith is an interesting question, but I think there is an issue in relation to stipulation of material. Having said that, I seek leave to withdraw amendment (27) on sheet 4869.

Leave granted.

I think we have a similarity here with an opposition amendment but I will move amendment (28) standing in my name on behalf of the Democrats:

(28)  Schedule 2, page 63 (after line 30),at the end of the Schedule, add:

13 After section 60

Insert:

60A Dealing with information obtained under a section 46B warrant

        (1)    The chief officer of a law enforcement agency:

             (a)    must ensure that every record or report comprising communications obtained in accordance with a warrant under section 46B is kept in a secure place that is not accessible to people who are not entitled to deal with the record or report; and

             (b)    must cause to be destroyed any record or report referred to in paragraph (a):

                   (i)    as soon as practicable after the making of the record or report if the chief officer is satisfied that no civil or criminal proceeding to which the material contained in the record or report relates has been, or is likely to be, commenced; and

                  (ii)    within the period of 5 years after the making of the record or report, and within each period of 5 years thereafter, unless, before the end of each 5-year period, the chief officer is satisfied that, in relation to the material contained in the record or report of a matter, civil or criminal proceedings have been, or are likely to be, commenced and certifies to that effect.

        (2)    Subsection (1) does not apply to a record or report that is received into evidence in legal proceedings or disciplinary proceedings.

This amendment moves to make the destruction provisions in regard to B-party warrants essentially mirror those provisions that are contained within the Surveillance Devices Act. The current provisions only require that material be destroyed when the Chief Officer gets around to it, and I thought it might be more appropriate. I think this arises, as my colleagues may recall, from our debate and discussion in the committee. I might just check my evidence but I think the terminology ‘turns his mind to it’ was used. I think the Surveillance Devices Act, because of a better threshold, would be a better example and therefore more appropriately we should enshrine those provisions into this bill.

12:55 pm

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

We do not support it. We think that if you read amendment (28) after section 60 and 60A, which then refers back to section 46B, I think 46B is not a matter that got up. In any event, for what it is worth, if you have got a question then perhaps you could deal with that. Mine was (20) and it failed. I think at that point it was similar to yours. There is not much point in re-running it.

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

I think the arguments that I outlined previously are much the same. I will not go over them. The government is opposed to (28), and I suppose that is no surprise to Senator Stott Despoja.

Question negatived.

12:57 pm

Photo of Christine MilneChristine Milne (Tasmania, Australian Greens) Share this | | Hansard source

The Greens oppose schedule 2 in the following terms:

(3)    Schedule 2, page 62 (line 2) to page 63 (line 30), TO BE OPPOSED.

It was in relation to the extent to which, if there is any inconsistency between this act and Australia’s obligations under international treaties, including the International Covenant on Civil and Political Rights, Australia’s obligations under those treaties prevail and override the operation of this act. That was to be inserted together with:

(2) Nothing in this Act authorises the interception of communications:

(a) of a person unless the person is suspected of engaging in the planning of, or other involvement in, terrorist acts or murder;

(b) where those communications contain information which is:

(i) the subject of legal professional privilege; or

(ii) derived from information that is the subject of legal professional privilege.

(c) where those communications contain information:

(i) the subject of doctor-patient confidential medical communications; or

(ii) derived from information that is the subject of doctor-patient confidential medical communications.

(d) of Federal or State Members of Parliament

The Greens are totally opposed to schedule 2 as it has been amended to date and will not be supporting it because it does not concur with those sentiments.

12:58 pm

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

If you thought that my amendments were groundhog day, I think, through you, Chair, to Senator Milne, the effect of the amendment voted on previously—the amendment moved by Senator Ludwig and me and I think divided on at that period to save the time of the Senate—dealt with the issue of B-party interception. If I am wrong, someone correct me, but that effectively sought to do the same thing, which is remove the operation of B-party warrants under this legislation. We have probably covered some of that in the absence of safeguards and protections that were required and our attempts on the crossbenches to improve that particular schedule in the bill. In the absence of that, we are all voting against the inclusion of the schedule in its current form. I have addressed those issues. I am not sure how we proceed, but I think that the views of most parties in this place are clear on this issue. If the Greens want to pursue this, I will certainly be supporting it on behalf of the Australian Democrats.

Photo of Andrew MurrayAndrew Murray (WA, Australian Democrats) Share this | | Hansard source

If I can clarify for you, Senator Stott Despoja: the question has not been previously put that the entire schedule be opposed.

1:00 pm

Photo of Christine MilneChristine Milne (Tasmania, Australian Greens) Share this | | Hansard source

I think there is some confusion here about what was attempted earlier in this debate. That is why I think that if there are going to be arrangements made privately they should include all parties involved in debating this bill. I found it extraordinary to come in here and divide on whether schedule 2 should stand as part of the bill and then come back to talk about amendments to schedule 2. Effectively, you are saying we will have two divisions. We will have a division on schedule 2 as it stands, then we will move to amend schedule 2 and then we will have another division on schedule 2 further to those amendments. Clearly, the intention was to have the division before we had the debate. I do not approve of that way of proceeding with a bill of this kind. I do not appreciate the remarks made in the meantime. I was not party to the idea of dividing on a schedule before the amendments to the schedule had been discussed.

I take this opportunity to say that the Greens most certainly do not support the B-party interceptions that are being discussed, for all the reasons that I mentioned a moment ago and that Senator Brown talked about in the second reading debate on this bill. We think they go way too far in overriding privacy matters and fundamental freedoms and, in fact, the International Covenant on Civil and Political Rights. On that basis, I am very happy to move that schedule 2, as amended, not be agreed to. That is my contention. Because of the process, I will be moving for a division as well.

1:02 pm

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

Firstly, I will advise the committee that I have some answers to Senator Milne’s questions. It is pertinent that I raise these now, at the point of the Greens’ proposal being discussed in the committee. Senator Milne asked whether it was white-collar crime that attracted a penalty of seven years or more. It clearly is, and there are a number of offences. Senator Milne asked also whether ASIC or the Australian Taxation Office could use B-party warrants to investigate white-collar crime. I point out that the interception powers, including B-party warrants, are strictly limited to police, anticorruption and national security agencies. As such, that does not apply to ASIC or the Australian Taxation Office. That is quite clear. White-collar crimes that are subject to the interception regime would be such things as major fraud and tax evasion. They are limited to the agencies of police, anticorruption and national security that I have mentioned. I think the issues that Senator Milne raised are not really of the concern that was indicated.

Senator Milne also asked: does this apply to members of parliament? Clearly, it does. All interception warrants apply to members of parliament. I make no apology for that. They should. The law and the investigative tools at the disposal of our law enforcement agencies across Australia should be able to be used in the investigation of all Australians. We made this very clear yesterday. We do not believe that politicians should be exempt. What I do say is that the courts can determine whether any evidence garnered from those interception warrants and which is the subject of court proceedings is admissible or not. In particular, I point to section 16 of the Parliamentary Privileges Act, which has specific relevance to parliamentary privilege. I point to O’Chee’s case, which went on appeal and which I think is one of the seminal cases on parliamentary privilege and the admissibility or otherwise of evidence in proceedings before a court. But that is for the court to determine.

When you are investigating an offence, all Australians are equal before the law and all Australians should be subject to the same powers of investigation without exception. We totally reject the idea that politicians should be in any way exempt from this regime. I think that covers the questions that I was asked by Senator Milne. In relation to this proposal, we believe that the B-party warrant regime is a very important part of the bill and we would oppose any moves to delete it.

1:05 pm

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

Labor have already moved to oppose the schedule. Our position on schedule 2, concerning B-party warrants, has been stated time and again. It is quite clear. I am happy to support this amendment. The Greens can move it. I do not have any difficulty with that at all. It is quite proper and in order. It reiterates our position that we oppose the position that the government has come to on B-party warrants. I will make the plug again that it would be much better if they picked up the committee recommendations.

1:06 pm

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

I think I have made the Democrat position clear on the schedule in its current form. Because of the time line of this debate we are dealing with this proposal to knock out schedule 2 after a similar amendment that obviously was moved at a different point in time. Since that point, some improvements have been made but there are still not sufficient safeguards built into the legislation to make it acceptable to the Australian Democrats. Once again, I put on record that we are supporting this amendment and that we attempted to have a comparable effect at an earlier hour.

Photo of Christine MilneChristine Milne (Tasmania, Australian Greens) Share this | | Hansard source

I rise in relation to the matter the minister just addressed. There was no suggestion whatsoever from the Australian Greens that federal or state members of parliament should be exempt under the law from the investigation of crimes. The issue that I was referring to is whether this B-party interception could be used by a government party to snoop on the affairs of other members of federal and state parliaments. That is the point at issue here. It is not about avoiding appropriate criminal prosecution or investigation.

I agree that everybody should be equal under the law in relation to that matter and that any member of state or federal parliament involved in criminal activity ought to be appropriately investigated. The issue is to what extent members of parliament are able to be satisfied that the government of the day will not use their capacity for this third-party interception to snoop on other members of parliament and their activities. That is what I am asking the minister: what are the guarantees that you will not use this legislation, under the guise of security, to invade the privacy of members of parliament who may, by accident, talk to somebody who might be under investigation in relation to any of these matters?

I would like some assurance from the minister that the government will not, in any way, use this legislation to inappropriately invade the privacy of members of parliament in any other jurisdiction or political party.

1:08 pm

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

Senator Milne’s question does deserve a response, because I can guarantee that this bill is all about the investigation of serious criminal offences and threats to national security. It is not in any way intended to give law enforcement or other authorities a mechanism to unlawfully investigate members of parliament.

There are stringent conditions attached to the issuing of these warrants, and they relate to the outlining of the serious criminal offence which is being investigated. If there is a serious criminal offence alleged and it is being investigated, then of course the law must take its course. We believe that those protections are in place and will certainly protect any untoward attempt to abuse this warrant process.

Senator Milne says that the Greens did not want to exempt politicians. I would remind her of the amendment moved yesterday by Senator Brown, which specifically referred to exempting federal or state members of parliament from the interception regime of this bill. That was moved yesterday by Senator Brown and, happily, it was defeated.

Photo of Andrew MurrayAndrew Murray (WA, Australian Democrats) Share this | | Hansard source

The chamber is dealing with the Australian Greens amendment (3) on sheet 4889, which seeks to oppose schedule 2 as amended. The question is that schedule 2, as amended, be agreed to.

1:18 pm

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

I move Democrat amendment (30) on sheet 4869, which opposes schedule 3 in the following terms:

(30)  Schedule 3, page 64 (line 2), TO BE OPPOSED.

This item is in relation to equipment based interception. This is an area that is still surrounded by uncertainties and confusion, as I think most of those who were engaged in the committee deliberations would understand. I note that earlier today when the minister was talking about the Blunn report, he used it as the motivator and the basis for this legislation. But, at the same time, when we came up with areas where perhaps the Blunn report recommendations were not followed, I think the minister at one stage talked about not ‘slavishly’ following a particular report, in this instance, the Blunn report. I know I asked the minister today where Blunn recommended equipment based warrants. His response was to refer to the quote in the report where Blunn refers to the unique identifiers.

The Australian Democrats believe that we should go back to the drawing board on this one. There is the review process and other opportunities for the government to analyse the effectiveness of equipment based warrants. We know that even some of the best minds dealing with technology in Australia today were unable to understand how these warrants would work or, indeed, if they would work at all. We heard evidence from Electronic Frontiers Australia, who were confused as to how the warrants would operate. I note that the Blunn report recommended—and I know the minister used this quote as well—that:

... priority be given to developing a unique and indelible identifier of the source of telecommunications and therefore as a basis of access.

We happen to believe that the government has actually moved away from the recommendation of the expert reports which it commissioned. As a consequence, it has introduced a piece of legislation and an aspect to it, and some groups, and I suggest some people in this place, cannot work out the scope of its operation. I do not believe the Blunn report, the motivator for introducing this legislation—and there are some necessary updates to the telecommunications interception law—specifically recommended the introduction of equipment based warrants. We are very concerned about their technological application—whether they will actually work. We are concerned about the fact that the government and some agencies do not seem to have worked it out either. Therefore, we suggest that the government removes this schedule from the legislation and considers, during its review process or over the next weeks and months, a better way of implementing the intent of the equipment based warrants.

I have difficulty finding any evidence that supports the equipment based interception warrants. I think in particular the evidence provided by the EFA should be referred to. In their submission they state:

This proposal appears to have an inappropriately and unjustifiably high potential to result in interception of communications of persons who are not suspects (i.e. are not named in the warrant) because, among other things, the types of device numbers proposed to be used do not necessarily uniquely identify a particular device.

I asked the Deputy Privacy Commissioner, Mr Timothy Pilgrim, about a comment in his written submission which states:

The Office has not been able to fully determine the limits to the scope of the operation of Schedule 3 ...

Mr Pilgrim said:

... it is an issue that we have been grappling with and, given our time to be able to devote to issues such as this, have not been able to fully explore ... What we are not able to grapple with—or have not had time to grapple with—is how that might be broadly applied in various scenarios.

That is in relation to equipment based warrants and the scope of the operation of that particular schedule.

We note again for the record that Blunn did not recommend the introduction of equipment based warrants. In fact, discussion in that report—and it is exemplified by the quote that both the minister and I have used—highlights the difficulties of accurately identifying a person through the use of international mobile service identifiers or such similar identification numbers. Again, the Democrats believe the operation of schedule 3 in its current form is not worked out and not tenable. We believe that at a minimum it needs to be referred for further discussion. The intent of this amendment is to ensure that equipment based warrants are not introduced and are not able to operate until we have more information and certainly more safeguards.

1:24 pm

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

Labor does not support the position that Senate Stott Despoja is putting in respect of this amendment. We think equipment based interception warrants will be an effective tool to assist with the investigation of criminal activity. It escaped me originally when we were looking at this particular area during the committee process, but it became plain, that the legislation provides that they can use them where there is a unique identifier. My understanding is that, if there is not a unique identifier, they cannot use them, so the confusion is removed. We were operating at that time under a misunderstanding of how the provision would work. Blunn at 3.2.5 says that of course there should be work done to develop a unique identifier so that there are not multiple identifiers. He then said in the text that people who use—I am summarising—multiple SIMs and multiple handsets can and do evade the law in their criminal activities and there should be a way of dealing with that.

This provision seeks to do that. Whilst investigators can identify a unique number, they cannot pick up all circumstances. There will be circumstances they miss where there is more than one identifier. Therefore, I suspect they will also be supporting work and research into developing a unique identifier. In the interim this provision deserves support. It will fight crime. It will be an effective tool for investigators to use in this area, especially against criminals who are intent on evading law enforcement agencies by using multiple handsets, multiple SIMs and other sophisticated technologies in their criminal pursuits.

1:26 pm

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

The government is opposed to this amendment. In relation to the use of equipment, it is obvious that times are changing and that the environment we work in involves high technology. The Blunn report did allude to the use of equipment intercepts and equipment warrants. That was touched on in the answer I gave earlier to Senator Stott Despoja. I think to ignore this fact would be negligent in the circumstances. We use a warrant for intercepting telephone conversations. We have been doing that for many years, in quite appropriate circumstances. We now have to expand this in the modern day environment in which we find ourselves to meet modern technological and IT demands.

This is a very serious bill. It does have serious measures—that is not denied. But it is, after all, dealing with serious crime in this country and the threat of terrorism, which are in themselves some of the most serious issues facing modern Australia. If we are not up to the task and we do not provide these measures for our law enforcement and intelligence agencies then we will fail. I think the community would expect us to be doing this.

We have the safeguards, which I have mentioned, in the legislation, and we will continue to monitor this. Earlier there was some suggestion that law enforcement may abuse its position. We have introduced just this week legislation for an anticorruption law enforcement integrity commissioner and commission to back him or her up in this task to ensure that the office of law enforcement is not abused. I can understand the concerns that Senator Stott Despoja has expressed, but the government believes that if it were not to continue on this path in relation to matching emerging technologies it would be negligent.

1:29 pm

Photo of Kerry NettleKerry Nettle (NSW, Australian Greens) Share this | | Hansard source

I just indicate that the Australian Greens are supporting this amendment because it is identical to one that was moved in the name of the Australian Greens.

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

I wish to briefly put on record on behalf of all the Democrats, given the comments that the minister has just made in relation to ensuring that there are checks and balances and in particular an external authority dealing with issues of corruption and safeguards, that it has long been a strong policy position of the Australian Democrats to support some kind of independent arbiter, if you like, in the form of a public interest monitor. I want to put this back into the debate for today as something that we hope the government will consider when dealing with reviews and assessments of this legislation and particularly the issuing of warrants generally.

We are all aware of the establishment of a public interest monitor in Queensland. I think that occurred in 2000. Over the years, the Democrats have put forward amendments to security legislation, the terrorism act, the suppression of the financing of terrorism, border security legislation and telecommunications interception legislation. We have repeatedly brought up the issue and sought to amend legislation to reflect public interest through the establishment of a public interest monitor that would in some way test the validity of applications and ensure that some third party provides an independent assessment for the Australian people. We believe that public interest is a huge factor in all legislation that we debate, but there are public interest elements in the bill before us today, particularly because of its impact on privacy.

We are strong supporters of a public interest monitor and we hope that the Attorney-General and, indeed, the Minister for Justice and Customs will consider the establishment of such a mechanism. It provides accountability mechanisms for Commonwealth law enforcement bodies. We believe that this would be a worthwhile investment that is effective and practical. The experience in Queensland suggests that this is the case. We believe that, given the design of our legal system, it reflects the view that justice is best served by having proceedings in which all interested parties are represented before an independent arbiter. It has been of concern to us for a long time that there is not that sort of external body.

People will reflect on the committee proceedings on this bill specifically. Submissions put forward the notion of a public interest monitor. Indeed, if I remember correctly, the submission from Electronic Frontiers Australia, when dealing with notification in relation to warrants, dealt with a couple of options, including one suggesting that kind of public interest monitor and/or ensuring notification in relation to warrants. I will not reflect on a vote of the Senate because I have already tried to ensure that people are notified of warrants being issued against them, particularly when the information that is obtained is not material to the investigation or it will not prejudice the investigation. I have dealt with that issue of notification, so I will not talk on that any longer. I want to get on record the strong support of the Australian Democrats over the years for, in the context of this debate, a position that may not be the same as but would be comparable to a public interest monitor. In relation to equipment based warrants, the Senate is aware of the views of the Democrats. I commend amendment (30) to the Senate.

Question put:

That schedule 3 stand as printed.

1:41 pm

Photo of Kerry NettleKerry Nettle (NSW, Australian Greens) Share this | | Hansard source

I will not proceed with Australian Greens amendment (4) because that is identical to the one we have just voted on. The Australian Greens oppose schedule 4 in the following terms:

(5)    Schedule 4, page 72 (line 2) to page 77 (line 6), TO BE OPPOSED.

It is my understanding Senator Bob Brown has outlined reasons for this amendment previously, so I simply commend it to the Senate.

Photo of Grant ChapmanGrant Chapman (SA, Liberal Party) Share this | | Hansard source

The question is that schedule 4 stand as printed.

Question agreed to.

1:42 pm

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

by leave—I move government amendments (18) and (19) on sheet PA337:

(18)  Schedule 5, item 35, page 85 (lines 1 to 5), omit the item, substitute:

35 Section 82

Repeal the section.

(19)  Schedule 5, page 85 (after line 5), at the end of the Schedule, add:

36 At the end of paragraph 86(1)(a)

Add “and”.

37 After paragraph 86(1)(b)

Insert:

        and (ba)     is entitled to have full and free access at all reasonable times to the General Register and the Special Register; and

38 Paragraph 86(1)(c)

After “agency”, insert “or the General Register or Special Register”.

39 At the end of section 86

Add:

        (3)    The Ombudsman’s powers include doing anything incidental or conducive to the performance of any of the Ombudsman’s functions under this Part.

These amendments repeal section 82 and modify section 86 of the Telecommunications (Interception) Act to ensure that the Commonwealth Ombudsman will have access to the warrant register compiled by the Attorney-General’s Department, to fulfil the important oversight functions under the interception regime. These amendments ensure the Commonwealth Ombudsman’s continued ability to have stringent oversight of the use of the interception regime by Commonwealth law enforcement agencies. These are straightforward amendments and I commend them to the committee.

1:43 pm

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

Sometimes you do see sensible amendments from the government. In respect of improving the overall privacy protections, providing the Ombudsman with this oversight is sensible and Labor supports it. I will not go on any longer about that matter. I think it does make the point that this government has failed everywhere else.

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

Certainly, the Democrats recognise in particular amendment (18), which makes the provisions regarding the Ombudsman more relevant as the register for warrants will be transferred. Rather than going on about that, I might specifically ask about the government’s response to the recommendation in the Senate committee chair’s report dealing with the extension of the reporting period for the Ombudsman from three to six months. I mentioned that in relevant amendments earlier, but I am wondering if the government can put forward a formal or any kind of response to the committee’s recommendation that that period be increased from three to six months. On the issue of resources, I am wondering if there are any plans by the government to increase the resources available to the Ombudsman so that he can continue to cope with an ever-expanding workload—and, indeed, the requirement now that his reporting period be three months, despite the attempts of the Labor amendments, I believe, to extend that period to six months.

1:45 pm

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

That is a budgetary consideration, not one which we would include in the bill. Of course, we have said that the recommendations of the Legal and Constitutional Legislation Committee would be taken on board over the ensuing months. Senator Stott Despoja knows that, on budgetary matters, I cannot comment, nor will the government. That is where the situation lies.

Question agreed to.

Photo of Kerry NettleKerry Nettle (NSW, Australian Greens) Share this | | Hansard source

The Greens oppose schedules 5 and 6 in the following terms:

(6)    Schedules 5 and 6, page 78 (line 2) to page 87 (line 4), TO BE OPPOSED.

I understand Senator Brown has put forward the reasons and the rationale for the Greens position on this, so I will simply commend it to the Senate.

1:46 pm

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

With due respect to Senator Nettle, I really worry about this in the sense that it is not sensible to oppose these schedules. These are improvements. The committee did not make any recommendations about these schedules. These schedules were picking up things that needed to be done as general improvements. If this is a general rail against the telecommunications interception, I can understand that, Senator Nettle. But, in this instance, in terms of what the schedules actually do, if you go to the committee’s report it might be helpful. If you want to look at the effect of the schedules you are seeking to take out, going to the background chapters is probably the best way. Schedule 5 is a transfer of functions. Schedule 6 contains provisions which are largely consequential and provide for specific state application where necessary. Obviously I am not going to support your motion relating to the transfer of functions which provides for a change of arrangements concerning the telecommunications interception remote authority connection in a sensible way. I will not say any more about that. They are sensible amendments, and we oppose the Greens position.

1:47 pm

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

I would not be inclined to support the amendments without some clarification. I do not think Senator Brown put forward the rationale for some of these amendments. As you would note, in the supplementary report the Democrats did not come out opposing the transfer of functions in relation to the Attorney-General’s Department. The argument that was put forward by the department was that there were technological issues. The model was technologically outdated and no longer efficient. I have no reason not to believe that to be the case. I do not really want to tamper with that proposed transfer at the moment from the existing TIRAC register to the secretary of the Attorney-General’s Department. I am quite happy to investigate or more closely view how operations work in the future, but at this stage I am not inclined to support the amendment.

Part two of amendment (6) seeks to remove schedule 6 of the bill, which introduces sections to allow this act to apply to the Whistleblowers Protection Act of Victoria. I am not sure I am ready to tamper with that, either. Through the chair, I say to Senator Nettle on behalf of the Democrats that I am afraid that I will not be supporting these amendments.

Photo of Grant ChapmanGrant Chapman (SA, Liberal Party) Share this | | Hansard source

I will put the two questions separately. The first question is that schedule 5, as amended, be agreed to.

Question agreed to.

The Temporary Chairman:

The second question is that schedule 6 stand as printed.

Question agreed to.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.