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Friday, 5 October 1984
Page: 1295

Senator GARETH EVANS (Attorney-General)(9.37) —In drafting this legislation the Government gave careful consideration to the kind of extension that is now being proposed by the Opposition. On balance-but only on balance- we decided not to pursue that particular course. Let me explain to the Senate why that was so and why, accordingly, on balance we would not support the amendment now moved by the Opposition. The starting point is an appreciation of the limited authority that successive governments have wanted to give in relation to telecommunications intercepts. The Telecommunications (Interception) Act only allows lawful intercepts to be obtained for one of two purposes-narcotics investigations or matters of national security. There are many other contexts, of course, in which it might be helpful or useful for law enforcement agencies to be able to apply telecommunications intercepts, but the traditional policy that has been adopted is that only in these very extreme areas of criminal activity or where there is a concern about national security, ought this extreme , privacy-invading investigative tool to be employed. That is the first point.

The second element in the existing legislation is that to the extent that material is lawfully obtained by an intercept put in place for one or other of those reasons, narcotics or national security, the material can be communicated to other law enforcement agencies, but again only in relation to a very limited class of offences. Basically, it is narcotics offences again or serious criminal offences-those containing provision for at least three years imprisonment. Section 7 of the existing legislation makes that clear. The third thing to appreciate about the existing telecommunications interception legislation is that as the legislation now stands-this is being modified by the amendment today -unlawfully obtained intercept material cannot be communicated to anyone even if there is some reason to suppose its legitimacy or authenticity. The present legislation places an absolute barrier on the communication of illegally obtained intercept information to anyone else. The reason for that is the clear policy underlying this legislation of not doing anything to encourage unlawful intercepts to take place. Once one opens a chink of daylight, so the traditional argument has gone, and makes it possible for intercepted information to be communicated elsewhere, albeit that the interception was unlawfully obtained-I hope the Democrats are listening to this because it is relevant to what I hope will be their vote on this matter--

Senator Archer —Ever the optimist.

Senator GARETH EVANS —That is the only reason I am making the speech at this stage, because I thought they were going to listen. It is all very well to speak for posterity but I would rather something more immediate. What I am saying, for Senator Macklin's benefit and the benefit of a cast of a thousand Democrats behind him that I know will back his judgment in these matters as on so many other things, is that the policy underlying the intercept legislation is to narrow very greatly the areas in which that information so obtained can be communicated, for the reason in turn that there is an underlying policy that there ought to be no encouragement whatsoever given to people, whoever they are, whatever positions they might occupy and whatever police force they might be involved in, to engage in unlawful intercepts. I think Senator Durack could probably accept the force of that policy argument.

The only breach we are now establishing in that policy is to enable what was an oddity in the past, that is to say, information obtained illegally to be communicated to a law enforcement agency for the purposes of a prosecution of the offence of obtaining information unlawfully. There was a rather silly catch- 22 in the legislation, as it previously stood, which is being corrected by the proposed new clause 7C of this Bill. We are making one further breach in that time honoured principle, and that is to say that this particular Age tape material, which we assume has been obtained unlawfully, if in fact it is authentic at all, can be passed lawfully to Mr Justice Stewart or to the New South Wales Commissioner of Public Complaints.

What the Opposition wants us to do now is to extend the range of lawful communication of this material much wider by enabling it to be given to the National Crime Authority, not in pursuit of some particular reference that that Authority has or may have from either the Commonwealth or the Inter-Governmental Committee, but for the Authority to do what it likes with the material in the context of its general investigative power, as well as some future specific reference. In other words, the material is to be given to the National Crime Authority in an open-ended way so that the Authority may utilise the material in the exercise of its own open-ended investigative power. It is that aspect of the matter that does cause us some concern.

It is one thing, we would say, to make the material available to a royal commission, such as Mr Justice Stewart's, with limited terms of reference, or it is another thing of a similar order to make it available to the New South Wales Commissioner of Public Complaints in the exercise of his jurisdiction to deal with complaints or alleged misbehaviour involving official misconduct. It is quite another, we would argue, to make it available to the Crime Authority with its comparatively open-ended jurisdiction. It is at odds with the policy that we have been trying to hold the line on, and that is to confine as narrowly as possible the way in which this material may be dealt with in order not to encourage other people in the future to obtain material unlawfully in the hope or expectation that that unlawfully obtained material then will be able to wend its way to crime busting agencies or law enforcement authorities.

The material may well prove to have ultimately some utility, but that has always been the case with unlawfully obtained intercept material. It may well have had lots of utility in the past but governments have held the line because of that overriding policy consideration. It is a matter for judgment as to whether the line should be drawn now, at this point, or whether there is something so special about this Age material that it justifies allowing the line to slip further in this way. I personally would doubt that there is something so special about this material. That tended to be the judgment of Mr Temby, to the extent that he was able to come to grips with that part of it which dealt with the possible commission of Federal offences. I am not sure whether it is any more substantial so far as State offences are concerned. It may be substantial, of course, so far as the Trimbole material is concerned, with Trimbole being, on the face of it, a prime target of the Age material, if indeed it was authentically obtained and put together. But that, of course, is within the competence of Mr Justice Stewart to explore.

The further point we would make, I suppose, although it is a lesser one, is that if the material is referred to the National Crime Authority a degree of duplication of effort would be involved under the amendment in that both the Stewart Royal Commission of Inquiry into Drug Trafficking and the Crime Authority would be required to satisfy themselves, before using the material in any substantive way, that it was in fact authentic, because that hurdle requirement is built into the terms of the amendment as it has been drafted by Senator Durack.

So one way and another we say that it is preferable at this stage to hold the line where it traditionally has been held, namely, as narrowly as possible. By all means let the New South Wales Commissioner of Public Complaints and Mr Justice Stewart look at it from their respective viewpoints, with the object of establishing authenticity and providence. By all means let those two bodies use the substantive material, if its authenticity is established, for the purposes of their inquiries and by all means, if all of those conditions are satisfied, let the Government have another look at it in a few months' time if it is clear that some of this material is authentic and can be utilised profitably for other investigations. But do not let us make that assumption at this early stage. Let us hold the line on that basic policy issue of not allowing illegally obtained material to have wide currency.

The final point I make is that if, despite all that, the Senate is minded to confer the power for this material to be given to the Crime Authority let it at least be understood that by enabling the Authority to look at the material under the terms of this provision we are surely not creating an obligation on the Authority to work its way systematically through the material, to hold hearings on it and to establish the authenticity, or the providence or the possible relevance of it to other inquiries. As I understand it, the only basis on which the argument is being put by Senator Durack is that if the material proves substantively to be relevant to something that the Crime Authority might be doing or might decide it wants to do, the Crime Authority ought not to be inhibited from using this material. As I understand Senator Durack, he is not going so far as to say that, by virtue of the passage of his amendment, there ought to be an obligation on the Crime Authority itself to mount a major investigation.

After all, let us appreciate what is involved in this material. The transcript part of it goes for something over 500 pages. It deals, as I recall, with something over 3,000 purported different conversations. It sprawls all over the place. Only a comparatively small part of it is likely to be, even on the face of it, of immediate utility to the kinds of investigations in which the Crime Authority might be expected to engage. It would be unfortunate if this amendment were to be passed and then the Authority were to be plagued with public suggestions, allegations or claims in a few months' time that it had not acted on the basis of the capacity vested in it by this amendment. I do not know whether Senator Durack wants to say anything more on that subject, but I hope that what he has in mind by this amendment is simply an enabling provision so that the Authority will not be unable to use the material, rather than something which would create an obligation on the Authority to mount a major investigation . Perhaps we could have some clarification of that. That would certainly be the Government's view of what the implications of this provision are.

Let me finish with one final reminder that the basic policy issue involved here is one that involves a matter of judgment. In all the circumstances of this obviously significant material, is it really necessary that we go so far as to add a whole extra layer of potential avenues for communication of this material when it has been manifestly unlawfully obtained? May it not be better to acknowledge the special case that is involved here but keep it to the limited area of Stewart and the New South Wales Commissioner to start with? Let us re- examine the position in a few months' time if it becomes apparent that any significant hindrance is being posed to law enforcement agencies by it being limited in this way.