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

I am obliged to other senators for the brevity of debate to the extent that we have been to the point but on these particular amendments I think that I should put before the committee the regime in relation to B-party warrants. We are dealing with a warrant which is in relation to stored communication related to a third party who is not the person under investigation.

The B-party amendments in this bill will only be used as an investigative tool of last resort and will be subject to strict controls and available only for the investigation of the most serious crimes. Specifically, a B-party warrant will only be issued to an agency where an agency believes it is necessary to intercept the communications of an associate of a suspect, and the agency must demonstrate that it has exhausted all other practicable methods of identifying the telecommunication services used or likely to be used by the suspect.

In addition, as per the existing interception regime requirements, an interception warrant will only be granted to an agency when an issuing authority is satisfied that (1) there are reasonable grounds for suspecting that a particular person is using or likely to use the telecommunications service and (2) information that would be obtained by interception would be likely to assist in connection with the investigation by the agency of the seven-year offence in which the suspect is involved.

The issuing authority must also have regard to the following additional factors: how much the privacy of any person would be likely to be interfered with by the interception; the gravity or seriousness of the offences being investigated; how much the intercepted information would be likely to assist with the investigation by the agency of the offence; to what extent alternative methods of investigating the offence have been used or are available to the agency; how much the use of such methods would be likely to assist in the investigation by the agency of the offence; and how much the use of such methods would be likely to prejudice the investigation by the agency of the offence. That is a list which has to be complied with, and it is not in the alternative. That is a comprehensive list which requires the issuing authority to have regard to a number of crucial factors.

We believe that the B-party warrant regime we have in place has safeguards and measures which are of such sufficiency as to protect the rights of the third parties who are not suspects but who may be believed to be associated with the person who is under investigation. I want to put that on the record. I think I have outlined the government’s stance previously. The government is opposed to Democrats amendments (23) and (24).

While I am on my feet, I will clarify a statement I made yesterday. Last night, during the debate on the proposed government amendment for AFP network protection practices, I advised the committee that I understood that the AFP had discussed this issue with the AFP Association prior to the bill being introduced to the Senate. That was following a question from Senator Ludwig. The purpose of the government amendment, by way of background, is to allow the AFP to continue to do what it currently does in relation to network protection and maintaining professional standards in the AFP. Its purpose is to support existing policy and practice within the AFP, of which all AFP employees and the AFP Association have been aware of since its inception in 2003. However, in relation to the question that Senator Ludwig asked, I must advise the committee that the AFP did not specifically discuss it with the AFP Association prior to the bill being introduced into the Senate. When I gave that advice to the committee, I was relying on advice that had been given to me at the time. I think that sorts that issue out. And the government is opposed to Democrats amendments (23) and (24).