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Wednesday, 29 May 1996
Page: 1352


Senator VANSTONE (Minister for Employment, Education, Training and Youth Affairs)(6.19 p.m.) —Just to respond to that point: I come back to labour it because I have obviously not made it clear enough.


Senator Bolkus —You have made it very clear, Senator.


Senator VANSTONE —I have obviously not made it clear enough that there is a substantial difference between those matters that you are asking a judge to consider in the Telecommunications (Intercept) Act and those that you are asking them to consider here. Senator Bolkus does not discharge his duty to this place by coming in and saying, `Look, on both of these occasions, you are asking a judge to consider things and, by a whole range of questions, they come to conclusions on certain things.' That is true, but it does not answer the point. One of the things that you would be asking them to do under this particular bill is qualitatively different from all of the things that you ask them to do under the Telecommunications (Intercept) Act. Nowhere in the telecommunications intercept legislation does a judge have to satisfy himself or herself that a person is likely to commit an offence.

Let us not pretend that we are simply talking about the issue of how a judge looks at certain things. Every time a judge makes a decision he looks at certain things. To say that that does not contribute, with respect, is not right. I come back to Senator Cooney, who I think understands and is trying to draw a line, and say that I do not think it is pos sible to draw the line. We are saying that, yes, in both cases judges would be asked to make certain conclusions but that in this particular bill you are asking for them to make a much more serious conclusion. Nowhere in the telecommunications intercept legislation do they need to draw a conclusion that someone is likely to commit an offence. They have to have reasonable grounds for suspecting that someone is going to use a particular service and that the information that would be likely to be obtained by intercept would be likely to assist. I mean, big deal! Under this, you could authorise a tap on a phone that was not the phone of the person whom you thought in the end you were going to catch. It might not be the phone of the guilty party.

I think it is correct that there would be a number of intercepts, and Senator Spindler would probably be aware of this from the previous committee experience he has had. There would be a number of intercepts—quite a lot—that you would ask a judicial officer to authorise. They are not intercepts that have anything to do, other than gathering evidence for an offence, with the person who is likely to be charged—that is, the targeted person. Even in those circumstances you have judges refusing to exercise their discretion and exercise the power that they could, by consent.

But in this case, inevitably—not just every now and then—there has to be the involvement of a person where conclusions need to be drawn by a range of people that that person is likely to commit an offence. So it is qualitatively different. To say judges decide certain things and take things into account all the time is irrelevant. This is qualitatively different. It is not possible that they can, as I understand it, authorise an operation where there is not a conclusion that someone is likely to commit an offence. So it is qualitatively different from the telecommunications intercept example.

I raised the point, as I put to you before, that you say, `We can fix part of this'—certainly not the speed problem and certainly not the declining problem, but I think you think you are going to fix the constitutional problem by saying that a judicial officer will not have to be satisfied that someone is likely to commit an offence but they will have to be satisfied that someone else is satisfied. You are just shifting the barrier back. The judge is still going to have to ask more than, `Are you telling the truth?' of the police officer. That was the point that I raised.

I am not trying to be difficult here. Senator Cooney may be able to help. How else can a judicial officer satisfy himself or herself that a police officer is telling the truth and believes that someone is likely to commit an offence without inquiring into those matters?