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

by leave—I move amendments (3), (4), (5) and (10) standing in my name on behalf of the Australian Democrats which relate to the issue of legal professional privilege.

(3)    Schedule 1, item 9, page 14 (line 28), omit “reason.”, substitute “reason; and”.

(4)    Schedule 1, item 9, page 14 (after line 28), at the end of subsection 116(2), add:

             (g)    whether the stored communication is likely to include information which is subject to legal professional privilege.

(5)    Schedule 1, item 9, page 15 (after line 17), at the end of section 118, add:

        (4)    A stored communications warrant must prohibit the collection of legally privileged information unless the contraventions to which section 116(1)(d) applies are punishable by imprisonment for a period, or a maximum period, of at least 7 years.

(10)  Schedule 1, item 9, page 29 (line 19), after “information”, insert “or information subject to legal professional privilege”.

We have previously discussed the importance of maintaining legal and professional privilege and these amendments intend to give effect to that. Obviously, amendment (3) is a technical amendment. Amendment (4) adds potential breaches of legal professional privilege to the list of matters to which the issuing authority must have regard before issuing a stored communication warrant. Allowing access to stored communications, as we have stated previously, has severe and serious privacy implications. Where access to email, voicemail and SMSs of a lawyer may occur, the agency exercising the warrant is likely to come into contact with documents subject to legal professional privilege that do not relate to the investigation in any way. This amendment simply requires that an issuing authority have regard to this fact when issuing the warrant. We believe that legal professional privilege is a fundamental tenet of our legal system, and it needs to be protected. This was something that was raised during the committee process in submissions, both written and verbal, to the inquiry. We asked witnesses about how best we could seek to protect legal professional privilege.

Amendment (5)—because (1) went down—intends to protect legal professional privilege in the absence of a high threshold during the application process of the stored communications warrant. Obviously, I did not succeed in increasing that threshold, so this is another way of building in more protections, specifically for the issue of legal professional privilege. As I have stated previously, it is crucial that we protect legal professional privilege not only because of reasons of privacy but also for reasons of good public policy. That reminds me: where is Senator Brett Mason while these debates are taking place—our new guru on privacy law? Maybe he should be in here giving us the contra view.

Amendment (10) moves to make inadmissible in an exempt proceeding material that is subject to legal professional privilege. I cannot emphasise enough that this seems to be a fairly basic issue. I thought there was broad concern for the protection of such privilege. I am dealing specifically with legal professional privilege. I know we have had amendments dealing with, and discussion about, other forms of professional privilege concerning members of parliament, religious leaders and doctors. Obviously, there are a range of people and professions that are potentially affected by this legislation, but these amendments go to the heart and the core of a legal issue. I hope that the government will see fit to support these amendments. I hope that the Labor Party will support them too.