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Friday, 5 October 1984
Page: 1299


Senator DURACK(9.58) —I thank Senator Macklin for his comments in relation to the amendment. I think his comments were very sensible and went to the point of the amendment. I suggest that if the Attorney-General ( Senator Gareth Evans) gave some weight to those comments-I acknowledge that he gave weight to my arguments too-and pondered on my arguments and Senator Macklin 's arguments he may see the wisdom of the Opposition amendment. I think it would be better if a decision on this matter was one across party lines in this chamber. I think it is a matter of very considerable significance that we have that bipartisan attitude in relation to a matter of such sensitivity.

I take the Attorney's point that there is an overriding public policy interest in the privacy of the telephone system. The clear object and intention of the Telecommunications (Interception) Act and its predecessors was all to give effect to that policy. Therefore, there have to be very strict rules about the use of such material either lawfully obtained in the narrow circumstances permitted or indeed unlawfully obtained. I framed this amendment having regard to that overriding policy consideration and came to the conclusion that the only appropriate body to have this material, apart from the bodies contained in the Government's Bill itself, would be the National Crime Authority.

I guess there might be a temptation to say that a lot of this material ought to be given to a number of other law enforcement agencies. We know, for instance, that Mr Redlich asked the Government whether he could give the material that he had to the Victoria Police, following presumably a perfectly reasonable request from the Victoria Police to see material which may have been relevant to breaches of Victorian law. We know that police forces in Australia for a long time have been anxious to be able to make use of the product of the interception of telephone communications for their own investigations and, from the police point of view, that is a reasonable request. After the National Crime Authority has had some experience and perhaps has given us some more advice, we in this Parliament will really have to bite the bullet at some stage on this broader question-though not today. I emphasise that I acknowledge that overriding policy , and acknowledge the fact that every time we chip away at it we may seriously erode the principle itself.

In the case of this material which has excited such public concern, and certainly if genuine is highly relevant to the type of function that we have given the National Crime Authority, it does seem quite appropriate for the National Crime Authority to have it and then make a decision for itself as to whether aspects of the material are of such importance to its investigations that it should be used either in the Authority's ordinary investigative role or, if it thinks it necessary-Mr Temby suggests this-it may seek a reference so that its coercive powers can be exercised. At this stage we do not even know whether this material is illegally obtained. We think it probably is but we do not know for sure. So, in a sense, we are not breaching that principle which, by the holus bolus use of illegally obtained material, may be seen to be a serious erosion of the principle of the Act itself.

But we have this curious situation which Senator Macklin has referred to-I overlooked mentioning it when speaking in support of these amendments in the first place-and which the Attorney himself has acknowledged. Under the interception Act, although it is an offence under sub-section 7 (4) of the Act to divulge or communicate to another person or make use of any information obtained by intercepting a telephone communication, nevertheless under sub- section 7 (6) that is qualified to the extent that a person may give information obtained by intercepting a telephone communication in certain circumstances and may give it in evidence in certain proceedings. So we have a situation where although it cannot be given to a person in order to inquire into the possible offences listed in 7 (6), nevertheless if the information is there, having been obtained, it may be given in evidence in these proceedings subject of course to the overriding principles and discretion of the court as enunciated by the High Court of Australia in Bunning and Cross. I am sure the Attorney is aware of the decision of the Tasmanian Supreme Court in the Regina and Migliorini case in which this principle was given effect to. I do not think we need that Authority to come to that conclusion in the light of Bunning and Cross.

We do have a rather odd situation in that in a prosecution resulting from, say, a national crime authority's investigations some of this Age tapes material could be given in evidence, with the court's discretion, but that national crime authority itself could not use it for the purpose of investigating for the preparation of the prosecution brief. It is a rather odd situation. I believe the National Crime Authority is one in which we all have confidence. It is not any old law enforcement agency. It would not give rise to the public disquiet which handing such material to some other law enforcement agency may do. I believe there are very strong arguments in favour of this amendment. I hope that the Attorney will reconsider it in the light of the interesting discussion we have had this morning about these matters which, on the one hand, are very sensitive and, on the other, raise anxious questions in regard to the proper investigation, the fullest investigation, of organised crime.

Finally, in answer to the Attorney's query to me-Senator Macklin has already answered it-there is nothing in my amendments which requires the National Crime Authority to take any steps. I do not seek to put pressure on members of the Authority to take any steps. I am simply saying that they ought to have this material. If in their judgment it is useful to them they ought to be able to make such use of it as they feel is helpful to them and desirable in the public interest. There is certainly nothing in my amendments which says that they have to act upon it. I think it would be unrealistic, on the other hand, if in light of the notoriety of these tapes, there were not some interest in what use they may make of the material. Nevertheless, that is another matter. I do not propose to put any pressure on members of the Authority that they should be taking any particular action in relation to the material.