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Monday, 29 November 2004
Page: 20


Senator KIRK (1:45 PM) —I also rise to speak on the Telecommunications (Interception) Amendment (Stored Communications) Bill 2004. As we have heard here today, this bill is the third attempt to clarify the application of the Telecommunications (Interception) Act 1979 in relation to stored communications. As other speakers have highlighted—in particular, Senators Ludwig and Buckland—the previous two attempts by the government, which formed part of the Telecommunications Interception Legislation Amendment Bill 2002 and the Telecommunications (Interception) Amendment Bill 2004, were ultimately withdrawn by the government. The reason for their withdrawal was, as we have heard, that significant flaws were found in these bills by the Senate Legal and Constitutional Legislation Committee.

We have heard that, in part, the last bill to be considered here collapsed after the Attorney-General's Department and the Australian Federal Police could not agree on the correct interpretation of the existing law. It is quite an extraordinary situation when you have two agencies of government not being able to come to any sort of agreement about the operation and interpretation of the existing law in Australia. Unfortunately, it was quite clear to the committee this time around, as demonstrated in its report, that this stand-off between the Attorney-General's Department and the Australian Federal Police was not resolved. The committee that I have referred to, the Senate Legal and Constitutional Legislation Committee, has now examined the current bill—the one we have before us today—and has recommended that the bill proceed. But this is only subject to an amendment that mandates a review of the Telecommunications (Interception) Act. Fortunately, the government has now made this commitment—it has agreed to such a review of the act. As a consequence it is now the view of the opposition that the bill should proceed and should be supported here.

As I mentioned, this is the third attempt to resolve a legal challenge that, at times, even looked beyond the capabilities of not only the Attorney-General's Department but also the Attorney-General himself. The flaws that were found in the two earlier bills I referred to were not simple, small technical glitches but were in fact fundamental legal problems. If these legal problems had been ignored then this would have led to a situation where there quite possibly could have been serious impediments to the effective law enforcement operation in Australia. The flaws, had they remained, would have made the already extremely difficult job that our law prosecutors face even more difficult and could have, as other speakers have said, led to the most unfortunate and unsatisfactory situation of the abandonment of ongoing criminal investigations—not something any of us would tolerate.

As I mentioned before, the last bill did collapse due to the failure of the Attorney-General's Department and the AFP to come to some kind of agreement as to the interpretation of the existing law. As other speakers have said and as I wish to emphasise here today, where you have two senior Commonwealth government agencies like the AFP and the Attorney-General's Department incapable of agreeing on the interpretation of existing law—in this case, telecommunications interception legislation—does make you wonder just what is happening to legislative development in this country and, in particular, in the Attorney-General's office.

As I have indicated, the Senate Legal and Constitutional Legislation Committee have now examined the current provisions that are before us today and have recommended that the bill proceed. It is for this reason that the opposition now supports this bipartisan recommendation and the bill. The report of the committee was a bipartisan report. It identified a range of issues that should be considered in any such review of the Telecommunications (Interception) Act. Other speakers—in particular, Senator Ludwig—have comprehensively set out the recommendations of the committee and the issues that they see as being significant. As I understand it, the principal issue was whether or not stored communication should be exempted altogether from the act or whether the exemption should be more qualified. I will not go into detail in the time that I have available to me today. The report speaks for itself, and Senator Ludwig has very clearly and articulately put before the Senate today, in his own words, the recommendations of the committee and how they saw that changes needed to be made.

To summarise the committee's report, the committee recommended that the bill proceed provided there is an amendment mandating the proposed review of the Telecommunications (Interception) Act as a whole. As other speakers have said, the government should not take too much comfort in this recommendation. The committee did, in fact, stop far short of giving any sort of unqualified endorsement of the approach proposed in this bill. In various paragraphs of the committee's report the committee offered only qualified support of the bill.

The process this bill has gone through is a very good example of the work of the Senate Legal and Constitutional Legislation Committee. It is a good example of the way Senate committees are able to work to scrutinise legislation, to identify where there are major flaws and to make recommendations such as those in the committee's report in this case. This inquiry, as are all the committee's inquiries, was a very important opportunity, I believe, for all of the implications of this piece of legislation to be drawn out and to be put into the public arena. It is very important that the implications identified by the committee in its report be further examined and responded to in the review of the Telecommunications (Interception) Act recommended by the committee. It is important in order to properly inform consideration of what the longer term outcomes should be. What longer term arrangements should be put in place after this legislation sunsets in 12 months time?

As I indicated, the opposition supports this bill. It is noted that the government has given effect to the bipartisan recommendation of the Senate committee and has agreed to a review of the Telecommunications (Interception) Act. But, as other speakers have said, in the past numerous legislative reviews have been put on the backburner or have fallen by the wayside. In this instance, the opposition will ensure that the government is held to its commitment to undertake a comprehensive review of the Telecommunications (Interception) Act.

Other opposition senators who have spoken have canvassed quite comprehensively some of the problems that were identified by the committee and some of the recommendations that were made. It needs to be emphasised here today that this process really indicates that the Attorney-General and his department are engaged in a process where ill thought out bills are being brought forward into the parliament. It is not too long before the quite obvious faults and defects in these pieces of legislation are identified. What happened during this process is a very good example of the work of the Senate Legal and Constitutional Legislation Committee and its ability to identify what are quite often fundamental flaws in legislation that is being presented by this government to this parliament. Fortunately, in this case these flaws have been addressed and corrected to the satisfaction of the opposition, and that is the reason we are giving support to the legislation today.

However, it is quite offensive for the Attorney-General to question the opposition's credibility for sending the amended bill to a Senate committee in order to ensure that the government has finally got the legislation right when, as I have emphasised here today, it has taken three attempts to do so. In my view and in the view of the opposition it is really quite outrageous for the Attorney-General to stand up in the parliament and question the opposition's credibility in this regard. After all, we allowed this bill to significantly benefit from the committee process. It is always the intention of the opposition to ensure that the legislation that comes into this place and that is passed by the Senate is in fact the best legislation that it can be in the circumstances. The role of the Senate Legal and Constitutional Legislation Committee was, as always, vital in this process. It is through the work of the committee that we now have a piece of legislation that can pass the Senate. I hope that the government adheres to its commitment that there be a full-scale review of the Telecommunications (Interception) Act. For our part, the opposition will be ensuring that the government is held to the commitment it has given to the Senate.