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

Hopefully we are now looking at schedule 1, item 3, which is on page 2 and is sheet 4882 and page 6 of the bill. It relates to and comes from committee recommendations 14 and 15. It is worth having a look at the recommendations. I do not know whether enough attention during this debate has been paid to the work of the committee; there certainly was a significant amount of work done by the committee in a relatively short time. Recommendations 14 and 15 state:

... The Committee recommends that the Bill be amended to ensure that copies of communications can not be accessed without a stored communications warrant.

                 …         …         …

The Committee recommends that the definition of ‘record’ be amended so that it applies in relation to accessing a stored communication.

A number of concerns were raised. The report says:

... the Committee is of the view that it is essential that the definitions proposed in the bill provide sufficient clarity to support the effective operation of the stored communications warrant regime.

The committee went on to acknowledge:

... the advice from the Attorney-General’s department that in some cases work is continuing. However, the Committee considers that definitional issues should be settled prior to the passage of the Bill.

I took the time to go through that section because I think it highlights what the committee was struggling with. Unfortunately, this seemed to be a rather rushed job, and a number of amendments that the government has now put forward are not part of the recommendations but are additional to them.

It concerns me that those sorts of definitional issues have not been settled, because right back when we started looking at stored communication a lot was said about getting the definitions right to make sure the legislation would work effectively so that law enforcement agencies would have certainty when they applied this law—because they will need certainty to apply it. Also, it will apply to a range of different and emerging technologies which there should not be any doubt about, because where there is doubt there will be litigation, expense and delay—and, just maybe, vital evidence will be lost. That would be a matter that would cause me some concern. In working through this, the committee made the point that those sorts of issues should in fact be settled to such an extent that they are robust and can stand scrutiny. To that end, the committee recommended that the definition of records and the treatment of copies be tightened. So I seek the government’s support and I move opposition amendment (4):

(4)    Schedule 1, item 3, page 6 (line 19), after “communication”, insert “or any record or copy of such a communication”.