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

I can certainly give Senator Ludwig the Democrats’ support. We have indicated repeatedly, including in the last set of amendments—which unfortunately were unsuccessful—that the issue of legal professional privilege is important to us. That was, as Senator Ludwig outlined, the view of the committee and everyone, particularly the major parties and of course the Democrats. We also in our supplementary, additional et cetera comments in the report made it clear that this issue was of utmost importance to us. Witnesses from the legal profession and other sectors also identified that it was important to them. Recommendation 9 of the committee stated:

The Committee also recommends that the Bill be amended to require issuers of stored communications warrants to consider whether the stored communications are likely to include communications the subject of legal professional privilege and whether any conditions may be implemented to prevent the disclosure of such communications.

In our own ways both Labor and the Democrats have attempted to protect legal professional privilege, at a minimum by ensuring that the issuing authority has regard to—as in considers—whether or not something is likely to be subject to legal professional privilege. That does not bind anyone. The last amendment seemed really simple, logical and nice, but it was still lost. That gives me an idea of the government’s perspective.

The Labor amendment moves to prevent the issuing of a warrant where the interception of communications may be subject to legal professional privilege. I think it would be better if the clause had some kind of likelihood provision, because it cannot be definitely known that a communication will contain information subject to legal professional privilege before the interception has occurred. I think amendment (16) is comparable to—it is much the same as, I suppose—Labor amendment (14), but it includes a provision about the likelihood that documents of legal professional privilege will be intercepted. We included and supported the notion of likelihood.

Again, I think this is a really fundamental issue. I do not think it is one that would be scary to the government or, surely, the enforcement agencies. I am very disappointed that the government has not taken up the committee’s recommendations. I am not sure whether Senator Ludwig is right that this is a consequence of rushed processes or truncated timelines and committees or whether the further removal of protections for a range of rights, responsibilities or liberties of our society is the intent of the legislation. I think this goes the crux of the problems with this legislation. If we cannot even consider the issue of legal professional privilege as one that needs to be further protected in this legislation, and done in a way that is not threatening, then I think we have a big problem.