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Thursday, 25 September 2014
Page: 7141

Senator LUDLAM (Western Australia) (13:25): For the record, I will note that is the third or fourth time—Hansard will be keeping track—that the Attorney-General has refused to answer a straightforward question on this matter. I suspect there will be others, so perhaps we should start keeping count. I will continue from the Law Council's submission:

The Law Council understands the need to ensure that processes associated with computer access warrants are efficient.

As do the Australian Greens.

However, the Law Council considers that in order to protect privacy rights from undue intrusion, access to computers should be on the basis that there is a demonstrated sufficient nexus between the computers accessed and the nominated person of security interest.

I guess that is the rub. There is a nominated person of security interest. We have applied for a computer access warrant that surrounds that person. How many devices could such a warrant capture? I think it is an entirely reasonable question that I am putting. The Law Council continues:

Rule of law principles also demand that there is greater clarity as to the scope of conduct which will be permissible under the warrant.

Again, this is from page 16:

For example, ASIO should not be able to seek a warrant to access the computers on a particular network, or at a nominated location unless there are reasonable grounds to believe that the person in relation to whom intelligence is being sought had a direct connection with computers other than his/her own on the network.

I think what the Law Council is getting to there is the arbitrary nature of the fact that these devices are all connected either physically or via wireless networks, and that the drafting appears to allow entirely arbitrary traversals of networks onto computers which actually have no direct connection with the person of interest. Perhaps this exists and it is just that the Law Council is not aware of it. Senator Brandis, could you point us to any definition, either in this statute that we are amending or another, of the key term of 'computer network'? Is there any definition in law that you could point us to to assuage our concerns about the arbitrary nature of the amendment that you have put before us?

Senator Sterle: I think that is a no.