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Wednesday, 29 May 1996
Page: 1346

Senator BOLKUS(5.48 p.m.) —We have heard Senator Vanstone arguing against herself in the last few minutes. I do not want to get into a wide ranging debate on this matter, but the last point she made was right. The amendments which Senator Spindler has put forward leave in the legislation the initial process, and the rights that people had to question that process are also left in. How you can argue that that is already there and then say earlier on in your speech that by bringing in this judicial review you are actually taking away rights people have got and those who might be innocent may find themselves entrapped because of the judicial review and the deprivation it may have on their pre-existing rights in the bill is a case of your arguing against yourself.

Senator Vanstone —No, I am not saying that.

Senator BOLKUS —You did, Senator.

Senator Vanstone —I will clarify that.

Senator BOLKUS —You may very well. The argument there is that the existing rights in your legislation stay. But what we are talking about is a capacity for an external assessment before the authority is given. I do not think that is too much of an ask.

In terms of time, you have the same imperatives regarding the interception act requirements as well. Things happen very quickly. That is why in 1979 we worked through this issue in the parliament and that is why in subsequent legislation there was a mechanism put in place to ensure quick access to an issuing officer for warrants under the interception act. In similar circumstances we are conscious of the need for urgency, but we maintain that the provisions that will apply here under Senator Spindler's amendments will cover that. In responding to you on those two points, it is important to know that we recognise that, but we maintain that the mechanism is flexible and accommodating enough.

We, like you, do not want the culprits to go free. We, like you, want to keep an honest system. But the only way we think we can do it is to do what Senator Spindler suggested, with the amendment that Senator Cooney has suggested as well. It allows for that external review but it removes it from the judge.

You may read the functions which a judge has to perform under the Telecommunications (Interception) Act 1979 in terms of warrants. There are quite a number of things that they have to address their minds to in terms of the processes of issuing a warrant in respect of telephone interception. There must be urgency; there must be reasonable grounds for suspecting that a particular person is using, or is likely to use, the service; there must be an awareness of the fact that information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in connection with the investigation by the agency of a class 1 offence, or class 1 offences, in which the person is involved. I can go on. You must have regard to the extent to which methods of investigating the offence or offences that do not involve so intercepting communications have been used by, or are available to, the agency. A judge must be satisfied about all these things, including how much of the information referred to in para graph (d) would be likely to be obtained by such methods, and how much the use of such methods would be likely to prejudice the investigation by the agency.

These are all important operational considerations that have to be taken into account by the judge. In the context of Senator Cooney's suggested amendment to Senator Spindler's amendment, those operational matters are the sorts of things that the judge would have to take into account. Qualitatively, it is very much the same. I have spoken for too long as it is. I do not want to speak any more about this issue. I think we have got the balance right at this stage.