Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Hansard source

I might take this opportunity to comment not only on these two amendments but the subsequent two sets we will be dealing with in a moment but that are in some senses related. Senator Xenophon's amendments seek to introduce a different warrant regime for journalists purportedly modelled on the provisions in America, as we discussed earlier in the committee stage. I note that in the other place Labor supported amendments which implemented such a warrant regime being introduced for journalists; however, I should note that those amendments were successful and that the bill before us already incorporates a warrant regime for the protection of journalists and their sources which was not previously in place.

Senator Xenophon would evidently prefer a different model from that agreed between the government and the opposition. It seems that the main focus of the amendments is what Senator Xenophon refers to as 'contestability'. Senator Xenophon says that his model is based on the law in the United States, though it is not clear precisely what law he is referring to. Of course, as we understand, the Americans do have a very different system from us.

We should be clear: there is no precedent in Australia for warrants to be subject to a contested hearing. Warrants are not issued in an interparties hearing. They are not the subject of a full contested hearing. The reasons for this are obvious. Notifying the subject of a phone tap or a search warrant defeats the purpose of seeking such a warrant. Best practice is, however, for an independent body to appear before the issuing authority and to test the argument of the agencies and argue against the issue of the warrant. In Queensland and Victoria bodies called public interest monitors perform this function. This bill implements best practice through the creation of a public interest advocate modelled on the public interest monitors in Queensland and Victoria. It is the first and only time such special protection has been provided to a warrant scheme at the Commonwealth level.

Though it is inappropriate for warrants to be contested in the way that Senator Xenophon desires, the public interest advocate model ensures that the warrant-issuing process is rigorous and that the issuing—