Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Hansard source

Senator Ludwig, we will get to that in a moment. I am just outlining the government’s rationale for this approach, because the Democrats, and others too, have been critical of it. ASIO inquires into matters of national security, and of course we have seen issues arise where evidence gained during intelligence operations cannot be brought into a court of law because of the different requirements involved in national security as opposed to criminal investigations. When it is a criminal investigation, you are then dealing with the prospect of that evidence being used against an individual for the purposes of prosecution. Understandably, we have a system which involves a judicial or quasi-judicial person. We have been talking about the AAT being the issuing authority. In a state where an AAT member is not available, law enforcement can go to a state magistrate—that is provided for as an alternative to an AAT member. We believe that that is appropriate for a stored communications warrant regime, whether or not it applies to a B-party warrant.

The next question is: do you restrict that evidence, the information that is gained, in the use of the B-party warrant? We would say that it should not be restricted. We say that what we are dealing with here is serious crime and national security—and, increasingly, the two are one, if I can put it that way. The CIA itself has said that transnational crime is a threat to national security. Organised crime in today’s environment is not the organised crime that we were dealing with 10 years ago. We have to have modern methods with which to fight organised and serious crime, particularly in an environment where criminals may well use telecommunications—which they increasingly are.

So the government does not accept that you should use one aspect of the regime for national security and not for law enforcement; the government does not accept that you should restrict the use of information from B-party warrants; and the government defends the fact that it maintained the different regimes for ASIO and law enforcement. We have an issuing authority regime, if you like, for law enforcement agencies and the Attorney-General application for ASIO. We believe that that has worked well and should continue to be reflected in this bill. But, as I have said, these matters are important ones. They are going to be considered on an ongoing basis by the government, and we will do just that. But we oppose amendments (1), (11), (13), (15) and (17) proposed by the opposition for the reasons I have outlined.