Scott Ludlam (WA, Australian Greens) Share this | Hansard source

That is an immense surprise. Just to be clear, the effect of this amendment is that the ordinary legislative powers of the Senate would be restored if the government of the day decided it wanted to widen the scope of the bill and require more data to be captured. This is material that could not necessarily be conceived of at the moment. I have no argument about the fact that this is likely to happen. Scope creep is built into the DNA of the bill. Where I disagree is that it should not be a regulation-making power. The government should be able to make its case and state it plainly to this parliament so that the parliament can then widen the scope. I do not see the necessity for doing things as backward as an executive decision being made and then leaving it to the PJCIS to work out whether it is a good idea and the parliament to ratify or not six to eight months down the track.

This amendment removes the ability of the Attorney-General of the day to arbitrarily increase the scope of the scheme through regulation. I have made my reasons for wanting to do that very clear. I would put one final question to the Attorney before we commit this one to the vote, unless other senators have questions. Recommendation 3 of the Parliamentary Joint Committee on Intelligence and Security said:

To provide for emergency circumstances, the Committee recommends that the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 be amended so that the Attorney-General can declare items for inclusion in the data set under the following conditions:

It then steps through them; effectively, you have enacted those with reasonable fidelity.

We do not have any kind of description at all as to what the emergency circumstances are. I am interested to know. Emergency implies the necessity of a fairly rapid decision. Since it does not appear to be in the bill, what definition will the government be adopting in its definition of 'emergency'? That is very different from the set-up you described before, which is the introduction of new services or the gradual evolution of technology. That is not an emergency, that is what we expect. What does the government believe will be an emergency that would require this kind of executive decision making rather than the ordinary legislative processes of this parliament?