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

Senator Brown’s amendment does not find favour and support with the opposition, and I need to make a couple points in respect of that. When you look at the issues that were gone through, if we had had more time then perhaps the opposition might have been able to have a better look at the amendments proposed by Senator Brown. Those matters were not explored by the Senate Legal and Constitutional Legislation Committee during the committee stage and therefore they were not able to be looked at by the committee in any great detail. It is a shame that that could not have been done. The more scrutiny in this area the better, from our perspective.

It is also worth reiterating some of the issues that Senator Brown covered a bit earlier. If you look particularly at the submission by George Williams, the matters that he raised in his submission really went to B-party intercepts. He had two specific concerns with schedule 2. In his submission he outlined what they were, namely, that the Telecommunications (Interception) Amendment Bill 2006 allows interception and use of all B-party communications, and he went on to articulate those matters, and there was no nexus required between the nature of the warrant and the investigation of the particular offence. His second matter concerned the issuing officers for stored communication warrants. So he had two specific concerns in relation to schedule 2: (a) the B-party intercepts and (b) issuing officers for stored communication warrants. Ostensibly they were picked up in the committee process and recommendations are provided in that committee report which go to addressing those concerns.

He also went on to say that the bill purports to clarify and restrict pre-existing B-party interception powers under the Telecommunications (Interception) Act 1979. What he is effectively saying—and I think that the evidence before the committee also went there—is that currently if you then say, ‘What is the status quo in respect of both stored communication and B-party?’ then it is important to note that the current position would be a continuation of 3L, that is, ordinary search warrants to access stored communication if this bill is not passed. In that respect this bill provides for safeguards that are not presently available if this bill were not supported.

In respect of B-party, it is a slightly more complex position. If you examine the case law that is currently available—and Flanagan’s case has been aired in the committee report—B-party would be available as a policy decision by the AFP, or the AGD perhaps, to use. This bill tries to strengthen the area to ensure that there are appropriate safeguards, which Blunn recommended, that is, in limited and controlled circumstances. What I think the government has not been able to do successfully is ensure that there are sufficient safeguards to protect, and I think that the committee made that point well in providing a range of recommendations to strengthen the provision to ensure that it will strike the right balance between privacy and the use of this power by the AFP.

I will not dwell on that, but I think it was worth while to bring back the debate to where we are in respect of this bill. The government is pushing ahead with it, notwithstanding that the better course would have been to examine the committee recommendations and come back, at least insofar as B-party warrants are concerned. I think stored communication could have been dealt with in a more pragmatic way than the government is now pursuing, and I will have some more to say about that in respect of my recommendations. I will not take up too much time on this amendment. As I have indicated, Labor are not prepared to support the amendment. We think that it might, in principle, have some merit, but unfortunately there has been insufficient time to consider it in any detail. That is the complaint I made last night and I make it again today.