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Wednesday, 29 May 1996
Page: 1344


Senator COONEY(5.35 p.m.) —What has come from the minister is a matter that should give us pause. As I understand it, there is no provision in the Telecommunications (Interception) Act or indeed in any act where a judge, to issue a certificate, has to be satisfied that a person is likely to commit an offence. As I understand it, in the intercept act the model for this provision is one which requires a judge to be satisfied that a person might use particular equipment.

I would have thought that being satisfied that a person might use particular equipment is quite qualitatively different—the minister is right in relation to this—from asking a judge to be satisfied that somebody is likely to commit an offence. I put up for discussion that one way to overcome this may be that we ask a judge to satisfy himself or herself that the officer who is applying for the certificate is satisfied that the person targeted by the controlled operation is likely to commit the offence.

I think no judge should be brought before a court and cross-examined as to why he or she believes a person was likely to commit an offence. He or she being asked to explain why they were satisfied that the officer who is making the application was satisfied that a person was likely to commit an offence is a much easier and better position for a judge to be in. In other words, what the amendment would do is not ask a judge to be satisfied that an offence was to be committed but ask a judge to be satisfied that the person applying for the certificate was satisfied that an offence was to be committed. I am not sure what Senator Spindler would say about that.