Senator VANSTONE (Minister for Employment, Education, Training and Youth Affairs)(5.14 p.m.) —Senator Cooney, I thank you because you have gone to the heart of what I now understand to be the difference between what Senator Spindler and Senator Bolkus would have us say are the consequences of the Grollo case and whether you can transfer that to this one. I make my first point. The distinction there is that that related to the telecommunications interception matters.

The similarity is that you are asking a judicial officer to approve something. I can agree in that sense. But what you are asking them to approve involves qualitatively different things. In one case—the telecommunications interception—what you are asking a judicial officer to do is to weigh up a balance between the invasion of someone's liberty and the good that is done. In this case, if Senator Spindler's amendment is successful, you are asking a judge to make an operational decision—not weighing up the good or bad.

There is a similarity of judicial officers involved and they need to give a tick, but that is about as close as it gets. There are very substantial differences between making a judicial decision, of balancing rights and responsibilities, and entering into an operational matter. You asked specifically for the wording. Section 45 of the Telecommunications (Interception) Amendment Act states:

Where an agency applies to an eligible Judge for a warrant in respect of a telecommunications service and the Judge is satisfied, on the basis of the information given to the Judge under this Part in connection with the application, that:

. . . . . . . . .

(c)   there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service;

(d)   information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist . . .

So he has to have reasonable grounds for suspecting. But under the particular proposal being put to us, the decision the judge would be asked to make would be quite different. He would have to be satisfied, with respect to a number of things, that the person targeted by the controlled operation is likely to commit an offence.

So we shift from being satisfied that there are reasonable grounds for suspecting to being satisfied that the person targeted by the operation is likely to commit an offence. Therefore, a judicial officer signing off on that does exactly, in our view, Senator Cooney, as you suggest—that is, provide an inference with respect to the likely guilt or otherwise of the person involved. That is a very serious problem.

I want to draw that to Senator Spindler's attention. I ask Senator Spindler and Senator Bolkus whether they see the distinction. The wording is not the same; it is different. What the judge is required to be satisfied about is different. Let us not pretend there is a similarity just because a judge is ticking off. You are asking them to make decisions with respect to different matters and also to come to a different level of decision—that is, to be satisfied not only that there are reasonable grounds for suspecting but also that the person is likely to commit an offence. They are qualitatively different things.