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

by leave—I move opposition amendments (14) and (16) on sheet 4882:

(14)  Schedule 2, page 62 (after line 26), after item 3, insert:

3B At the end of section 9B

Add:

        (3)    A warrant under section 9, in a case in which subparagraph 9(1)(a)(ia) applies, shall not authorise the interception or further use of communications which are subject to legal professional privilege.

(16)  Schedule 2, page 63 (after line 30), at the end of the Schedule, add:

11 After section 47

Insert:

47A Warrant not to authorise interception of material subject to legal professional privilege

A warrant issued under section 46, in a case to which subparagraph 46(1)(d)(ii) applies, shall not authorise the interception or further use of communications which are subject to legal professional privilege.

Notwithstanding the debate we have had on legal professional privilege, we are going to have it again. What has not ceased to amaze me in the last couple of days is that before 1 July this government was far more accommodating in terms of the recommendations out of a Senate committee report, especially when it was a majority report. The report in this instance was almost unanimous in the sense that there were additional dissenting comments; it was not a dissenting report—I will take some licence from you, Senator Stott Despoja. In this instance, government senators and Labor senators said, ‘There are recommendations which we think the government should seriously look at.’ Prior to 1 July, the government would have had a good look at them and where it could meet them it would. It knew that it would have to come into this place and defend its position. If the opposition, the Greens, the minor parties and the Democrats could argue the case—and when Senator Harradine was here, he would sometimes join in the argument and we would try and persuade him as well—we could effect an outcome: we could move an amendment and have it succeed.

With that view in mind, many a time the government came to a position where, before it got to the floor of the parliament, it would negotiate, look at the amendment and come up with an answer that might meet the concern of the committee. Following 1 July, we now have government senators still doing their job in committees. They are still taking the metered course of looking at the legislation, seriously listening to submitters, taking their concerns on board and bringing recommendations through the committee process to influence government.

The Attorney-General, in this instance, I think, is lazy. I doubt he has even looked at the report, quite frankly. He has clearly picked up the obvious recommendation like the Spam Act, which really could not be ignored and had to be dealt with. He looked at his own amendments that he wanted to put through—and we saw that yesterday—and then did not come back to the other recommendations at all to look at whether they could be supported. He dismissed not only Labor’s position in terms of the report but also his own backbench committee, in effect. This is a position that the government senators should start to recognise: that even their recommendations in committee reports are ineffectual in trying to persuade this government on issues. Maybe they should start taking a different tack.

The problem is that this is a new regime—the stored communication regime. It is a new area. The submitters argued that it should not be in a separate regime; that it should be part of the telecommunications interception regime for real time as well. Blunn indicated in his review that there should be a separate regime. In so doing, he ranged across a number of areas. The committee heard from submitters that the issue of privilege should be dealt with in a practical way—and that ended up in the committee recommendations—that the bill should contain sensible amendments and that, in terms of B party, it required more protection.

With regard to stored communications, we can accept Blunn’s view, and the way the legislation would work would not necessarily mean you would need to have the same type of protection. But B party is where Blunn said, ‘limited and controlled circumstances’. Of course, in that, we cannot be guided any further than by what he said in his review. However, we can be guided by the committee report, which indicated it should be used in limited and controlled circumstances and made some substantive recommendations about the use of privilege. The substantive recommendations on privilege indicated that we should take a belt and braces approach.

I do not think it is an argument to say that the government wants to maintain consistency across all legislation. That would be news to me if the government did that. It would be a fine day, certainly, if the government said, ‘All our legislation across all our acts and various regulations is consistent.’ Of course it is not consistent. There are inconsistencies all over the place because of the very nature sometimes of the legislation and the requirements or there is an exception to the general rule. In this instance, a case can be made for this committee recommendation to be included in the legislation to provide the protections that are required. That argument can be made and it is being made today. I do not think it is an answer to say that the government wants to keep it consistent across the area. Even Blunn recognised that this area was more difficult and should be one of those exceptions to the general rule that would otherwise prevail. The committee report thought—and government senators thought also, might I add—that it should in fact be the exception to the general rule and that protections should be afforded. It is not onerous. It is not going to create any great difficulty.

In relation to the B-party protection of legal professional privilege, recommendation 22 of the report provides a straightforward way of ensuring that the communications for legal professional privilege are maintained. Labor wants to make the legislation regarding this protection explicitly clear so that it strikes out the use of interceptions in these cases in the first instance rather than dragging them through the courts. The amendment makes it abundantly clear that legal professional privilege is protected. On that basis we move that amendment and seek the government’s and the Democrats’ support.