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

I would like to raise some general matters going to a number of recommendations made by the Senate Legal and Constitutional Legislation Committee which went to issues that perhaps could not easily be put in a format consistent necessarily with an amendment. I refer particularly to recommendation 6, which states:

The Committee recommends that, consistent with the existing arrangements for telecommunications interception, immediate action be taken to ensure the enforceability of the stored communications provisions on State and Territory agencies by requiring complementary legislation to be enacted as a precondition to being granted the powers of an enforcement agency under the stored communications regime.

This is a matter that has been utilised by the Attorney-General’s Department in the past where they have put preconditions before they allow a state authority to be granted that power. In fact, one notable example of recent times comes to mind where there was a requirement for matters to be dealt with before the Attorney-General would indicate that they could utilise that interception power. In looking at that provision, the committee considered it essential that the Commonwealth has the ability to enforce the obligations prescribed in the bill relating to accessing stored communications:

... immediate action be taken to ensure the enforceability of the stored communications provisions on State and Territory agencies ...

The report states at paragraph 3.65:

The Committee considers that consistent with the arrangement for the existing telecommunications interception regime, State and Territory Parliaments should be required to enact complementary legislation for access to stored communications as a precondition to being granted the powers of an enforcement agency under the stored communications regime.

It is recognised that there is a particularly short time frame to enact this legislation and ensure that it can start. I note that there is obviously a requirement that the matters be brought to a conclusion this week—that seems to be the government view. But these matters could be dealt with by an undertaking here by the government that they will abide by the existing arrangements in place and that they intend to ensure that those matters are dealt with as they have been dealt with in the past.

States have accessed telecommunications interception that way. In terms of stored communications, although it is a different warrant regime it is still a warrant regime that is designed to ensure that there is an appropriate and proper regime in place to process stored communications. It would also allow state governments to utilise the regime while being bound to ensure that they meet all the privacy concerns that have been raised during the committee and by the submitters to it. I think those sorts of issues could be dealt with by the government providing an undertaking to that effect.

Also, more generally—I will move on, but I will come back to that particular issue—and it is really only a case of reiterating what I had an opportunity to say in part during the second reading stage of the debate: this process has effectively been shortened by the government’s desire to bring this legislation forward in this manner. I can complain a number of times about that, and I suspect I will come back to a couple of complaints, but it is perhaps best to get that out of the way early and get it off my chest. There could have been a better process in place. The government chose not to ensure that there was a better process.

I have no complaint about the way the Blunn review was sought, obtained and finalised. The government followed committee recommendations on what was effectively a very difficult issue. I guess I am coming to how you work out what you do with stored communications; how you ensure that there is a balance, with privacy concerns being taken into consideration and safeguarded; and how you then deal with ensuring that our law enforcement agencies have appropriate powers to fight crime. Up to that point, one could only say that the government had acted reasonably, but we find that in the second part, which is the part where the legislation to effect the Blunn review recommendations has come forward, it is disappointing to see that the government is now rushing the parliament. It could have been done in a more metered and better way. It could have been phased in. It could have been brought forward in parts that were able to be dealt with—particularly the stored communications regime. It is a positive regime and is recognised as a positive regime to protect people’s privacy. That could have been the first tranche of this review of the Telecommunications (Interception) Act 1979.

Blunn recognised that this will not be the first or last time that this legislation will be reviewed. It seems that the government has cobbled together some issues that could have and would have been better dealt with at a later stage. Having said that, the submitters to the committee also recognised that they were being short-changed in terms of time and their ability to engage in the committee process. That is my second complaint: legislation should be subject to quality review by the committee. Submitters should have sufficient time to examine legislation and have reasonable time to ensure that their responses are both qualitative and quantitative in the sense of being able to ensure that they deal with all the issues, deal with them in a qualitative way and highlight the issues that they want to, rather than being put through the test of being rushed through, sometimes without being able to consider their submissions and look at other submissions. That would ensure that the process is the best one possible. Also, the committee must be able to ensure, when it hears from submitters, that it has sufficient time to listen to submitters, query submitters and give them a reasonable opportunity to come back on issues that may need to be clarified. The submitters in this instance were given a very short timetable to turn around any responses or queries the committee might have had.

The argument from the government might be that that was driven by the necessity of meeting the deadline. The government set that deadline. It could have changed the deadline if it so desired; it could have extended it further; it could have done a range of things to mitigate it. It did not. We then have to deal with the reality that the government is setting the deadline and driving to it. It is easier if I get those complaints out of the way first, rather than make them every time I stand up to deal with an amendment. I know they are legitimate complaints and I think that in this instance the government has failed to allow the committee to adequately scrutinise this bill in a holistic way. Coming back to the undertaking I suggested: if the government wants to provide that, it would be helpful.