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

Ditto. The Australian Democrats will be supporting this necessary clarification to the definition of ‘stored communications’. I totally agree with what Senator Ludwig said. We had a complaint last night about the process. The government does give us grounds for a perpetual whinge. It is not an isolated incident. I would suggest to Senator Ludwig that in fact the Senate committee inquiry is being used as a de facto committee stage and is designed to truncate some of the discussions that we should be having in this place. I once again record my concerns. I wish the government were picking up more of the recommendations contained in the Senate committee report.

Question agreed to.

I move Democrat amendment (1) on sheet 4869:

(1)    Schedule 1, item 2, page 4 (line 23), omit “3”, substitute “7”.

On behalf of the Australian Democrats, I have just moved the first of a number of amendments to try not only to encapsulate the gist of some of the Senate inquiry issues and submissions but indeed to encapsulate the recommendations that we have moved through our supplementary report with additional comments of dissent. The amendment is intended to raise the threshold for access to a stored communications warrant from imprisonment for a three-year period to imprisonment for a period of seven years.

Those who of us who were involved in the committee will know that there was a bit of a debate about the differential thresholds. The Australian Democrats maintain that the differences are a little spurious. We are not at all convinced by the argument that voicemail, SMS or email is less private or in some way less confidential because it has been more considered or more thought out. I am not sure about some of the SMSs that people are sending around this place—and I am not quite sure why Senator Johnston is laughing so much. Maybe I have touched on something!

As such, the Democrats believe that stored communications warrants should not be treated differently from an interception warrant which deals with live communications. There was evidence given to the committee in relation to this issue. As those who attended the committee would be aware, I asked a number of witnesses about their views on the differential treatment in relation to the differing thresholds for interception warrants and stored communications warrants. The Attorney-General’s Department, some officers of which are here today, will remember that I asked during that inquiry about the rationale for those different thresholds for stored communications and interception warrants, again relating to the notion that emails and SMSs are more considered than a live communication. I asked about that rationale, and one of the responses was:

It is something that is in writing—something that definitely involves more consideration of the expression—although there is the speed issue.

I think that rationale may be a little outdated, and certainly it is somewhat unconvincing. I will quote from Professor Williams. As we have heard in this debate, he provided written and verbal submissions to the inquiry. I believe I asked him about it. He said:

It strikes me as nonsensical that a differentiation would be drawn between speaking to somebody on a mobile phone and sending them an SMS message. Many of the students whom I teach today see them as equivalent forms of communication. It makes no sense as a matter of law or public policy why, indeed, it is easier to gain one type of information than the other.

He then said:

I think the proper focus for assessing this legislation is: what is the appropriate limitation upon the privacy of Australian people? For them there is no rational distinction, so I cannot see how you could justify one from the government’s end.

I do think that we need to change the thresholds. The attempt of this amendment—by increasing the three years to seven years—is to achieve parity between the two types of warrants. I think that if we did a vox pop of people in this parliament and on the street as to whether or not they consider that there is a difference between a so-called live communication and one that is written—and that includes SMS which I think is a fantastic medium—they would say it was quite a spurious claim that they are different and therefore one should be treated with more protection, privacy or confidentiality than the other—and, indeed, it is easier to obtain a warrant for one than another and there is a different threshold of imprisonment terms.

I commend this amendment to the Senate. I think it makes sense. Again, as Professor Williams stated in his response, the basic matter here is privacy protection for the Australian people. I also think that, as a matter of law, there are some important legal parities, if you like, that are not served by the bill in its current form. I commend the Democrat amendment and ask senators to support it.