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

I move:

That this bill be now read a third time.

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

I will only speak for a couple of minutes in respect of this. The position we have now got to is that the government has voted down sensible amendments which came out of the committee process. It voted against its own backbench, voted against sensible amendments and voted against the committee’s process that provided for sensible amendments to be dealt with—in particular, sensible measures that would provide protection for B-party interception. It is recognised that the majority of this bill—schedules 1, 3, 4, 5 and 6—has merit and will provide an improved regime compared to the point where we have come from. There is no argument about that.

There is argument about the detail. We do not think you have got that detail or that balance right, and we moved amendments to give effect to that. But, in terms of the overall improvement to privacy, this bill achieves that—except for B-party intercepts. We made that point during the committee stage, during the second reading debate and in the Senate Legal and Constitutional Legislation Committee. The government’s own backbenchers made the point that this bill does not strike the right balance.

Labor recognises that the bill, taken as a whole, advances privacy. The B-party content of this bill, though, is not time critical and is not subject to the stored communications sunset clause which has caused this bill to be dealt with in great haste—the government cannot hide behind that. Further, the Howard government introduced only yesterday legislation which establishes the Australian Commission for Law Enforcement Integrity as promised some time ago—in fact, it was promised in the last federal budget. We understand that it was introduced yesterday and that the Senate Legal and Constitutional Legislation Committee will have an opportunity to look at it.

The majority of this bill, with the exception of B-party warrants, is reasonable. It is unfortunate that this government has not picked up the amendments that Labor has proposed, safeguards which would have struck the right balance. It really comes down to a lazy Attorney-General, who has not had the opportunity to look at the recommendations, to bring forward amendments and to argue for them in here. That is why this extended process has occurred: because of a lazy Attorney-General. There is no other way of putting it.

The government could have picked up our recommendations during this debate. They have not. Therefore, they have not struck the right balance. Privacy is not sufficiently protected so far as B-party intercept warrants are concerned. But the whole of the bill should not fail as a consequence of this government’s lazy attitude to dealing with legislation.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

It is clear that based on the numbers this bill will not fail. It will be passed, but I want to put on record very strongly once again the concerns of the Democrats not just about the policy deficiencies in this legislation but about the process—which Senator Ludwig has referred to. There was a majority committee report signed off on by backbenchers from both the major parties, yet it was almost completely ignored in this committee stage of the bill in terms of amending the legislation.

While we acknowledge that we have to readily and appropriately equip our law enforcement agencies to ensure that we have a safe and secure society, we also must have regard for democracy and human rights and, in particular, privacy. In this bill, we do not strike the proportioned balance that is required. The attempts by the Democrats to build safeguards and some privacy protection provisions into this legislation have failed.

I am really disappointed about the fact that we have had a truncated debate. I do not care what the government or others suggest; it is really only in the last few days or weeks that we have dealt with this legislation. Indeed, I acknowledge that it is a carry on from other bills that have been debated and examined. We all acknowledge the importance of the Blunn report. But this legislation deserved more time, and it certainly deserved more amendment.

The Democrats attempted to deal with, for example: the differential thresholds; the fact that we need to require more information from agencies that are issuing, for example, a stored communications warrant; and the fact that individuals upon whom a warrant is exercised should be notified so that if they are aggrieved they can access the civil remedies that are available under the legislation—that issue of notification. We are talking about nonsuspects, innocent Australians, who have the right to know if their calls or their communications are being accessed or intercepted.

We attempted to deal with the fact that warrants should not be issued by the AAT but should be authorised by a judge on the Federal Court, and that was not supported; the fact that warrants should be limited to 14 days, not 45 days, and that was not supported; and the fact that an issuing authority should not be able to grant a B-party warrant where that warrant is likely to breach professional privilege. Professional privilege is not secure under this legislation. I am not talking about professional privilege generally; I am talking about legal professional privilege. Our attempt to ensure that that is secure and protected under the legislation unfortunately failed too. Destruction provisions needed to be beefed up; they have not been sufficiently beefed up.

On the issue of equipment based warrants, I acknowledge the comments in the Blunn report but they still do not give an imprimatur to this specific schedule 3, which deals with equipment based warrants. We do not know how they are going to operate. We do not know exactly how effective they will be. We should have gone back to the drawing board to deal with some of these issues before this legislation was passed.

You have seen attempts in this chamber by the cross-parties to stop schedule 2—which is about B-party warrants, the most controversial aspect of this bill—being passed. You have also seen attempts by the Democrats, and indeed the Greens, to stop schedule 3, which is in relation to equipment based warrants. They have not been successful.

This bill does not have enough privacy protections. It does not have enough safeguards. It should not pass in its current form. I am disappointed that some of the necessary updates to telecommunications interception law have taken place without those safeguards. Some of the recommendations from the Blunn report have to be implemented—we acknowledge that. But the rest of this legislation is not good enough, and our attempts to ensure that it is good enough have, unfortunately, failed.

How ironic it is that we deal with such legislation in the year which, as we were reminded in an address by Justice Kirby, is the centenary of the final exoneration of Alfred Dreyfus, a man wrongly convicted by evidence obtained in secret by security personnel. It is fitting that we acknowledge that centenary. The Democrats do not believe the bill in its current form should pass.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

The Australian Greens oppose this legislation. We believe that it is inconsistent with our obligations under the International Convention on Civil and Political Rights. It does not strike the right balance between the need to protect national security and to prevent serious crime and the need to protect individual rights to privacy and to freedom. Our concern is that this bill as a whole sacrifices the latter in the current climate of fear and threat of terrorism.

The definitions in this legislation have been described by legal experts such as Professor George Williams as ‘vague’ and ‘allowing for the potential for government agencies to misuse the power or apply it in an arbitrary manner’. The Law Council have said that this legislation means that people suspected of nothing will be under surveillance. They go on to say that this is the first time ever in Australian history that law enforcement agencies will be given the power to intercept telecommunications of people who are not suspects—innocent people. The Australian Greens oppose this legislation.

Question agreed to.

Bill read a third time.