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

At the outset, can I say in relation to the question put by Senator Stott Despoja that (2)(a) of the Greens’ amendment would have narrowed greatly the application of this bill. That has now been withdrawn. It was a sensible move by Senator Brown. Even on a cursory reading one could see that a simple assertion to limit the interception of communications in those circumstances would have meant very much narrowing the application of the act. It is very simple; it is very straightforward. I am surprised that that was included. Anyway, it has been withdrawn and I recognise that. I found it quite surprising that it was in the proposed amendment.

There are other aspects to this which I need to comment on, and they are in relation to the question of whether federal and state members of parliament, High Court judges, Federal Court judges and people in other areas should be subject to the interception of communications. The Greens say they should not be. It is very difficult for law enforcement agencies to guess what they might or might not come across in an interception. When you intercept telecommunications, you do not know what lies ahead. This was recognised in the case of Carmody and MacKellar, a decision of the full bench of the Federal Court which was cited by the Attorney-General’s officials before the Senate Legal and Constitutional Legislation Committee. It basically puts the proposition that you allow the interceptions to take place, within legal requirements, of course, but it is then for the court to determine the admissibility or otherwise of that evidence. That is how our system works. If you have legal professional privilege, that could be grounds for counsel to object to that evidence being adduced in relation to a court proceeding. The court then determines that you are right and that that should not be admitted, and it is not.

It is up to the court to determine what evidence should be admitted or not. If you say to law enforcement agencies: ‘You can’t even go to the first step of investigation,’ then you are going to limit law enforcement greatly. In fact, we are dealing here with particularly serious offences, such as possible sex trafficking and trafficking in narcotics, which would have been excluded by (2)(a) if it had been left in by the Greens. That is why you have to give law enforcement agencies the ability to have this interception power, particularly in relation to counter-terrorism. It is very difficult, in fact impossible, to put upon law enforcement agencies the ability to say: ‘If I intercept this communication it will involve one of these exclusionary areas. Therefore, I shouldn’t do it.’

The other aspect of this which the government do not agree with is that we should exclude federal and state members of parliament from scrutiny. We believe that all Australians are equal before the law and all can be subject to investigation by law enforcement equally. Politicians should not be exempt. If Senator Brown is saying that the individual has to be protected against the state, we would say that all individuals are equal before the state. If you are a federal or state member of parliament, you are subject to the same aspects of legal investigation as anybody else. The same applies to a High Court judge or Federal Court judge. We have seen in the past that, unfortunately, members of parliament and judges have been found guilty of offences. I think that that vindicates the position that the government are taking. No-one in Australia should be exempt from investigation in such a manner as proposed in this amendment. That strikes at the very heart of the rule of law in this country.

As for the International Covenant on Civil and Political Rights, the government are firmly of the view that this bill accords with our international obligations. We have had in place now for some time interception regimes in relation to law enforcement. In fact, it is widely accepted by Australians across the country that, provided that there are legal requirements in place and they are met, there should be the ability for law enforcement agencies to have these interception powers. Senator Brown said that this was in some way a knee-jerk reaction. That was the implication of what he was saying with reference to Professor Williams and it has been his approach to this debate in general.

This interception bill had its genesis, as I said yesterday, in 2004 when we looked at the Telecommunications (Interception) Act. After committee scrutiny, it was said that stored communications needed to be looked at. In fact, I mention again that there was view, much publicised by the AFP and AGD, about a different approach to this issue. Much was made of it. There was much debate. There was parliamentary committee scrutiny at the time and there was a bill that canvassed telecommunications interception at that time. We commissioned the Blunn report in the interim. Over those intervening two years much has been done in relation to the question of modern technology and telecommunications interception.

The Senate committee handed down a report, which we have responded to. We have adopted some of its recommendations and, as I have said, the Attorney-General will continue to consider some of its other recommendations. It is bit much for the Greens to come in here and say that there has been no debate on it and that this is a knee-jerk reaction. Senator Brown has also been forced to admit that he made a mistake in his proposed amendment.

I could ask Senator Brown whether he attended any of the Senate Legal and Constitutional Legislation Committee hearings on this. I know what the answer would be: no. As I understand it, although Senator Brown and his colleagues in the Greens are participating members, not one of them attended the hearings of this committee to have any input into the report to this parliament on what he says is a very important bill. When he comes in here and puts forward all these platitudes about the protection of the individual and about the fact that this is a knee-jerk reaction, let us look at and reflect on what contribution the Greens made to this report.

The government has looked at this report and acknowledged that it is a good piece of work. We have adopted some of its recommendations and will continue to consider some of its other recommendations. If I am to compare, Senator Stott Despoja was at the hearings and wrote a dissenting report. Indeed, Senator Ludwig was there and contributed greatly to the Senate report. I want to place that on record so that those listening understand the background to this debate.

The government does not agree with the proposals put by the Democrats. The opposition has put forward proposed amendments which reflect the recommendations made by the committee which we have not adopted. We have said that we will continue to look at those recommendations. But at least we have had some contribution—in fact, a good deal of contribution—from the Democrats and the opposition in relation to the writing of this report by the Senate Legal and Constitutional Legislation Committee. Senator Brown says that he has been robbed of a chance to provide input, but he is a participating member and he had every chance to go to those committee hearings.

This amendment by the Greens is flawed on a number of counts. We have seen how flawed it is by the fact that Senator Brown has had to withdraw paragraph (2)(a), which narrowed greatly the effect of this bill. This bill conforms with our international obligations, and therefore the first part of Senator Brown’s amendment is unnecessary. The other part of Senator Brown’s amendment, which we oppose vigorously, purports to exempt certain Australians from any investigation under the interception regime which is being proposed. We believe that all Australians are equal under the law and should all be subject to the same investigative capacity by law enforcement, especially when you are dealing with serious criminal offences and terrorism. For those reasons, the government opposes the amendment moved by the Greens.