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Monday, 1 June 1987
Page: 3736


Mr McGAURAN(9.26) —I am pleased to be able to join in this debate on the Telecommunications (Interception) Amendment Bill 1987, which is extremely important legislation and which, as the honourable member for North Sydney (Mr Spender) has said, is long overdue, given that recommendations for change stretch as far back as the Woodward Royal Commission into Drug Trafficking in 1979, followed by the Williams Royal Commission of Inquiry into Drugs in 1980, the Stewart Royal Commission of Inquiry into Drug Trafficking in 1983 and finally, and probably the best known in this area, the Stewart Royal Commission of Inquiry into Alleged Telephone Interceptions of 1986.

It surprised me somewhat that the Chairman of the Select Committee on Telecommunications Interception, the honourable member for Macarthur (Mr Martin), devoted so much of his time slamming in an irrelevant manner the responses or lack of them from the various State governments, given that every police force of those State governments made a submission to the Committee. I believe there are far more important issues on which the honourable member could have concentrated in his final 10 minutes than something that is really not an issue, given that the police forces, through their associations or police commissioners, made quite extensive and strongly and vigorously argued submissions. His contribution to the debate tonight is not a hallmark of his chairmanship of that Committee which, all things considered and bearing in mind the different views brought to that Committee, was worthy of praise.

Following the Proceeds of Crime Bill and the Mutual Assistance in Criminal Matters Bill, this legislation seeks to equip our law enforcement agencies with the necessary tools to combat organised crime. As honourable members will know, previously only the Australian Federal Police could apply for phone taps, on request from State police forces as well as the National Crime Authority, admittedly but only in relation to drug trafficking. This legislation will enable all police forces, the National Crime Authority and the New South Wales Drug Crime Commission to obtain warrants for phone taps in respect of not just drug trafficking but also a wider category of serious offences to which I will turn my mind a little later.

I have three major concerns about this legislation, two of which to some extent have been answered. The first relates to the setting up of a central agency within the Australian Federal Police to apply the phone taps. The Special Minister of State, Senator Tate, approached me recently and asked me whether I would visit the AFP headquarters to look over the operations that have been established there in readiness for this legislation. I was impressed with what I saw. It overcame not just the fears I had about the cumbersome nature of a central agency but also those which were shared to the best of my recollection by every police force that gave evidence before the Committee, including the AFP. The fears of speed and access have been overcome because the phone tapping equipment within the AFP really is just a collection agency. At the same time as the wheels are running in the central telephone interception agency-I will put it in layman's terms, ignorant as I am on so many of these technicalities-it is translated almost simultaneously within a fraction of a second, by way of microwaves or some such technicality, to the agency which had applied for the taps. In other words, the AFP is not transcribing the information or even taking much notice of the phone taps that it is charged to apply. Instead it is the law enforcement agency, be it the State police force, the National Crime Authority or the Drug Commission, which is simultaneously transcribing, interpreting and disseminating the information. So I would not go as far as to say that the left wing of the Australian Labor Party has been circumvented, but it seems to me that the objective of the law enforcement agency bearing the responsibility as well as the financial cost of phone taps has been largely satisified. I find myself looking with some wry amusement at the cleverness of the Special Minister of State and those associated with him in setting up such a system.

The second major fear I have is in relation to the definition of crimes for which warrants can be applied. Like the member for North Sydney, I am uncomfortable, to say the very least, with the definition of a class 1 offence and a class 2 offence, believing that codifying the crimes for which an application can be met in this way is to narrow-unnecessarily dangerously even-the fight against organised crime. Instead I prefer to look at, and I would ideally wish to adopt, the precedents from overseas. I take just one example, that of Sweden, often believed by members of the Government benches to be the home of civil liberties and all that is good about socialism. It has a very wide charter under which applications for phone tapping can be made. The following quotation from the Swedish code of judicial procedure sets out the conditions under which phone taps can be obtained:

If a person reasonably can be suspected of an offence punishable by imprisonment for at least two years, and it is found of extraordinary importance for the investigation that the investigating authority or the prosecutor obtains knowledge of conversation-

he can apply for a phone tap. Sweden believes that phone taps can be applied for from, naturally, a judge, if a person can be reasonably-not certainly but reasonably-suspected of an offence punishable by imprisonment for at least two years. I look now at Canada. The relevant provisions there state:

An authorisation may be given if the judge to whom the application-

for the phone tap-

is made is satisfied:

(a) that it would be in the best interests of the administration of justice to do so, and

(b) that other investigative procedures have been tried and have failed, or are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

Mr Deputy Speaker, you can see immediately that other countries entrust to the judicial system a discretion by which phone taps can be applied. The model which I would prefer to see incorporated in our legislation is that belonging to the United Kingdom, where a warrant can be obtained if it is:

(1) in the interests of national security;

(2) for the purpose of preventing or detecting serious crime, i.e., involving violence, resulting in substantial gain or conducted by a large number of persons in pursuit of a common purpose, or where it could reasonably be expected that a person with no previous convictions would be sentenced to imprisonment for three years or more.

(3) for the purpose of safeguarding the economic well-being of the United Kingdom . . .

I am pleased that the honourable member for North Sydney, following my consultation with him, is to move a number of amendments which would see the category for which phone taps can be applied widened. In other words, despite the best efforts of some well-meaning Government members, particularly those who belong to the Joint Select Committee on Telecommunications Interception, they have not expanded the category for which phone taps can be applied widely enough, and the reason for that is very simple. No matter how hard they try, they will continually run into the brick wall of the lunatic Left, which places civil liberties on an altar far and beyond what is necessary for a free society. In doing so, that lunatic Left hands over to organised crime the whole box and dice. I admire the Attorney-General (Mr Lionel Bowen)--


Mr Hodgman —Whose side are they on?


Mr McGAURAN —Whose side are they on? I admire the Attorney-General for his attempts in this whole package of legislation to deal with organised crime to a certain extent. I have acknowledged this in previous speeches. I think in all of the circumstances he has done a remarkable job. In saying that, I do not believe for a moment, nor does the National Party of Australia, that he goes nearly far enough. It will always be a balancing act between civil liberties, freedom of the individual and the necessary equipping of law enforcement agencies with the powers and investigate techniques to deal with the extraordinarily complex and sophisticated animal that we term `organised crime'. Again, I fear that the balance has been tipped in favour of organised crime for far too long, frankly to the shame of not just so many of our law enforcement agencies, but of this Parliament itself. Now, when we have an opportunity given the awakening and the furtherance of our knowledge through a series of royal commissions, at least finally to get that balance on an even scale, forgetting about tipping it towards the law enforcement agencies, while this Government is in power we do not take that opportunity.

The third area of concern that I have with the legislation-I was to move an amendment in similar vein to that moved by the honourable member for North Sydney but I am prevented from doing so by House of Representatives practice and I naturally support this-is to delete those provisions that will disqualify the common law discretion in deciding whether or not illegally obtained phone tapes will be admissible in a court of law. Under the legislation any illegally obtained phone tapes are inadmissible in a court of law. Previously the common law allowed a discretion to the judge to decide and to balance the differing requirements as to whether or not they should be admissible. Even the Law Reform Commission, in its 1975 report, argued that the common law discretion should remain, as did Mr Justice Stewart, in his recent report of the Royal Commission of Inquiry into Alleged Telephone Interceptions.

In simple terms, the provisions in this legislation would not have allowed the Age tapes to be admissible in a court of law. I believe that the common law discretion, as outlined in a number of cases, the best known being Bunning v. Cross as well as Regina v. Ireland, is best summarised by saying that we must balance the public need to bring to conviction those who commit crimes against the public interest of protecting the rights and freedoms of the individual, as well as protecting, naturally, that individual from unlawful or unfair treatment. It is a matter that we should entrust our judicial system with. I very much fear that this blanket outlawing of illegally obtained tapes could in the future restrict our war against criminals. Is this Government so lacking in confidence in the traditions and precedents of common law that it would now strip common law and the judges of their rights as to discretion? Is this Government so certain that the probative value of illegally obtained tapes is of less importance than the need to convict criminals?

For that reason I support the second reading amendment moved by the honourable member for North Sydney, and indeed will further support the amendments to be moved in the Committee stage, which will seek to extend further the category of crimes for which phone taps can be applied. The National Party generally supports the aims and the tenor of the Bill, whilst expressing, as I say, reservations in regard to those three basic planks of the Bill. Firstly, most of my fears concerning the central phone tapping agency have been allayed, but it is certainly a matter which we will continue to monitor very carefully. Secondly, I reject outright the doing away with the common law discretion and the making of illegally obtained tapes inadmissible in a court of law. Thirdly, the definition of crimes for which phone taps can be applied is far too narrow.

Either we are serious in the fight against organised crime or we are not. The honourable member for Dundas (Mr Ruddock), the honourable member for North Sydney, the honourable member for Denison (Mr Hodgman) and the honourable member for Flinders (Mr Reith) are all distinguished lawyers in their own right. Indeed, the honourable member for Denison and the honourable member for North Sydney are Queen's Counsel. They have all had a contribution to make in regard to this area. No Government members can accuse any one of those distinguished lawyers of not having as much regard for civil liberties as Government members profess. The honourable member for North Sydney, in numerous discussions both in the former coalition's Attorney-General's committee as well as in private discussions, I know brings a sense of balance to debates on measures to fight organised crime, always bearing in mind the need to maintain the freedom and the rights of the individual. If anything, I think the honourable member for North Sydney and I differ in that I would bring a much harder rod to bear on organised crime. But we will not argue about semantics. The National Party of Australia is certainly not concerned about slight differences. We save ourselves for the major differences.

The civil liberties and rights of an individual are very largely protected because a judge, in reaching a decision on whether to grant a warrant for a phone tap, has to take into account the following factors. I am sure my colleagues will agree that these are very extensive. Firstly, he has to take into account whether the information would assist the investigation. That is somewhat self-evident. Secondly, he has to take into account to what extent other methods which do not involve phone tapping have already been tried by the agency applying for the tap. The third consideration is whether traditional methods of investigation and surveillance would not succeed. The fourth consideration is whether traditional methods of investigation would cause a delay. This is terribly important when dealing with drug trafficking, crimes of violence and crimes against property. He must consider whether a delay would be caused if a phone tap could not obtain the information speedily. The next consideration is how much the privacy of any person would be interfered with if such a warrant were issued. The final consideration is the seriousness of the conduct, the matter being investigated, for which a warrant is sought.

The legislation also enables warrants to be obtained on application made by telephone instead of writing if urgent circumstances dictate. Generally, only Telecom can conduct the phone taps but in special circumstances a judge may allow the Australian Federal Police to apply the taps themselves. Furthermore, the legislation sets the maximum period of effect of a warrant at 90 days. So in no sense can a warrant, once obtained, and a phone tap, once applied, continue ad infinitum. The Commissioner of the Federal Police and the Chairman of the National Crime Authority must furnish to the Special Minister of State copies of all warrants. In addition, they are required to record in general terms the use and communication of information obtained under the warrants. These reports, together with reports from State and Territory Ministers, will form a report to be tabled in Parliament by the Minister. As if more independent or objective scrutiny were needed, the legislation allows for the Ombudsman to inspect the records of the National Crime Authority and the Australian Federal Police. Moreover, the Ombudsman may report to the Minister at any time about the results of his inspection.

In drawing my remarks to a conclusion I reiterate that the National Party welcomes many of the provisions of this legislation. Like the honourable member for North Sydney, we are disappointed that it has taken this Government so long to bring such desperately needed legislation before the House. Like some of the distinguished lawyers I have mentioned, the honourable member for Denison, the honourable member for Dundas, the honourable member for Flinders and the honourable member for North Sydney, I have visited overseas some of the phone tapping operations of the Federal Bureau of Investigations. I notice that the honourable member for Fisher (Mr Slipper) has entered the chamber. He has a record to be proud of in the fight against crime. I have visited many overseas agencies and there is no doubt in my mind that phone tapping is the fundamental, if not the most important, single tool law enforcement agencies can employ against organised crime. We could spend several hours speaking about how phone taps can be so employed. Suffice it to say, we support the legislation as far as it goes but we sadly believe that it does not go far enough.