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

by leave—The amendments were not grouped this way on the running sheet, but all the B-party amendments in fact should have been grouped together. I suspect that is not the Clerk’s fault. I move opposition amendments (11), (13), (15) and (17) on sheet 4882 and (1) on new sheet 4893:

(11)  Schedule 2, item 3, page 62 (after line 26), at the end of subsection 9(3), add

      ; or (c)    communications made to or from a telecommunications service used or likely to be used by that person is likely to provide information relevant to the particular activities prejudicial to security which are stated in the application.

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

3A Subsection 9B(4)

After “previously been issued”, add “unless subparagraph 9(1)(a)(ia) applies to the further warrant, in which case no further warrant may be issued”.

(15)  Schedule 2, item 9, page 63 (lines 16 to 25), omit subsection 46(3), substitute:

        (3)    The Judge or nominated AAT member must not issue a warrant in a case in which this section applies unless the person making the application on behalf of the enforcement agency sets out evidence in an affidavit at the time of its application, or in the case of a telephone application, within one day after the day on which the warrant is issued, that:

             (a)    the agency has exhausted all other methods of identifying the telecommunications services used, or likely to be used, by the person involved in the offence or offences referred to in paragraph (1)(d); and

             (b)    interception of communications made to or from a telecommunications service used or likely to be used by that person would not otherwise be possible; and

             (c)    communications intercepted from the communications service will not breach any person’s legal professional privilege.

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

12 At the end of subsection 49(5)

Add “, unless the warrant is issued in a case to which subparagraph 46(1)(d)(ii) applies, in which case no further warrant may be issued”.

(1)    Schedule 2, page 63 (after line 25), after item 9, insert:

9A After section 46

Insert:

46AB Limitation on use of information derived from B-party warrants

Types of persons—A-party, B-party, C-party

        (1)    A person who would be likely to assist in connection with the investigation of a serious offence or serious offences is known as an A-party.

        (2)    A person who receives a communication from, or sends a communication to, a person described in subsection (1) is known as a B-party.

        (3)    A person other than a person described in subsection (1) who receives a communication from, or sends a communication to, a person described in subsection (2) is known as a C-party.

Use derivative-use indemnity applies to communication from C-party

        (4)    A warrant to which subparagraph 46(1)(d)(ii) applies can not be issued in respect of a person described in subsection (3) merely as a result of the action described in subsection (3).

        (5)    The provisions of this Act do not apply to any communication made by a person described in subsection (3) merely as a result of the action described in subsection (3) and any information given by such a person is not admissible in evidence against the person in:

             (a)    any criminal proceedings other than a proceeding for a serious offence; or

             (b)    any civil proceedings.

These amendments are recommendations from the committee report. As I have already said at least once today, it was a majority report. The government backbenchers and Labor agreed with the recommendations and agreed that B-party warrants should have protections consistent with the Blunn review—that is, that they go to ensuring that they only be utilised in limited and controlled circumstances. Opposition amendments (13) and (17) concerning no renewal of B-party warrants are consistent with ensuring that these amendments are not used as rolling warrants—in other words, they have a limited circumstance.

Labor believe that if we are to have a 45-day B-party warrant, then its renewal should also be limited. If a law enforcement agency cannot get the information in that time, then it should have a look at its own procedures. It begs the question, of course, of whether a real link can be made between party A and party B in that period. If there is a belief that a second warrant is required after the end of 45 days, then they can go back to the issuing authority and indicate that there is a requirement to continue to have that interception. The issuing authority then has an opportunity of hearing from them to ensure that it is required and consistent with Blunn and consistent with ensuring that the person’s privacy is kept at the forefront in the issue.

B-party warrants have provided another area of concern. In recommendation 18 the committee report highlighted an issue that also needs to be addressed, the tightening of B-party warrants issued by the Attorney-General under section 9 of the act. In relation to this warrant class, which ASIO uses for national security purposes, the Labor amendment tightens the definition to ensure that the B-party service that is to be intercepted is only able to be intercepted after the Attorney-General has satisfied him or herself that the B-party service:

... is likely to be used to communicate or receive information relevant to the particular activities prejudicial to security which triggered the warrant.

A number of submitters raised this matter that there should be—to use, from memory, their words—that link to ensure that B-party warrants are not used as a fishing expedition and are only used where it has been able to be demonstrated to the issuing authority that they have met the requirements under the current law and the proposed amendments to the current law and to reinforce the principle of limited and controlled circumstances.

Looking at the amendments which have been proposed in the broader area, (15) spells out the requirements for the issuing of section 46 warrants. This provides, in accordance with the committee recommendations:

The Judge or nominated AAT member must not issue a warrant in a case in which this section applies unless the person making the application on behalf of the enforcement agency sets out evidence in an affidavit at the time of its application, or in the case of a telephone application, within one day ... that:

(a)      the agency has exhausted all other methods of identifying the telecommunications services ...

(b)      interception of communications made to or from a telecommunications service used or likely to be used by that person would not otherwise be possible; and

(c)      communications intercepted from the communications service will not breach any person’s legal professional privilege.

In total, it seeks to ensure that, as the Attorney-General spelt out, B-party warrants are utilised as a last resort and legal professional privilege in this instance is sufficiently protected. They are sensible amendments to B-party warrants to strike that balance between privacy and the needs of law enforcement agencies. The Senate committee saw that there was a need to ensure that that balance was there. The committee made a number of recommendations to ensure that people’s privacy was protected sufficiently whilst not impeding law enforcement agencies’ ability to fight crime. These amendments reflect those recommendations and try to achieve that balance.

It is disappointing that the government has not sought to pick them up. They are sensible amendments. They go to ensuring that the recommendations of the Blunn review are met and that, as I have said a couple of times this morning, B-party warrants are utilised in limited and controlled circumstances. That is sensible. This government has not provided the right balance in the legislation.