Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Hansard source

I rise to speak on the Telecommunications (Interception) Amendment Bill 2006. The bill currently before us introduces a number of amendments to the Telecommunications (Interception) Act. The bill aims in part to implement the recommendations arising out of the independent Blunn review into the telecommunications interception regime. Largely, this bill is looking to update the existing act to take account of new technologies such as SMS, email and the like that were not envisaged when the original act was introduced and which have sat with an uncomfortable legal status since they came onto the market. An email or SMS, for instance, is not an instantaneous communication like a phone call. It is composed, stored and transmitted as a complete one-way message rather than existing in real time like a telephone call. This has created some problems for the existing system and the definitions that are in place.

Since 2002 the parliament has struggled four times with the issue of stored communications. The contentious provisions in the Telecommunications Interception Legislation Amendment Bill 2002 were withdrawn after the Senate Legal and Constitutional Legislation Committee recommended against their inclusion. In 2004 the contentious provisions of the 2002 bill made a return. During the committee hearings on this bill it became apparent that the Australian Federal Police were using warrants under section 3L of the Crimes Act to intercept stored communications material from internet service providers. But such was the difference of opinion between the AFP and the Attorney-General’s Department on this matter that the committee recommended the reforms to the telecommunications regime be deferred until there was some unified position from the government.

The final result was that the committee recommended that an independent review of the act occur and imposed a sunset clause on the AFP’s use of general warrants to access such stored communications. The original 2004 bill was thus not pursued, but subsequently the government came back to the parliament with another bill that implemented the committee’s recommendation. Twelve months turned out to be not long enough for Anthony Blunn to conduct his review and for the government to finalise the subsequent legislation. A further six-month extension was granted by the Telecommunications (Interception) Amendment (Stored Communications and Other Measures) Bill 2005, and that extension expires in June of this year. Hence the debate today and some concern to get these changes through the parliament before that time expires.

From Labor’s point of view, the present situation of dealing with such communications is unsatisfactory. Email and SMS messages are available to be intercepted by the general Crimes Act warrants under section 3L. Labor strongly believes in tougher safeguards than are presently available under this regime. As it stands, we have a stopgap measure that will fall over when the clause expires in mid-June, and clearly the parliament does have to act decisively on this issue before that time. The bill before us today seeks to implement a number of recommendations, but not all of the recommendations, of the Blunn review. Because this bill does not represent the total sum of reform recommended by Mr Blunn, we will no doubt be revisiting this issue again in the not too distant future. What is before us today is perhaps as much as the Attorney-General could put together given the deadline to have the bill passed, assented to and proclaimed. In any case, Blunn’s main findings were that:

• the protection of privacy should continue to be a fundamental consideration in, and the starting point for, any legislation providing access to telecommunications for security and law enforcement purposes …

Further:

• access to telecommunications data is, and for the foreseeable future will remain, fundamental to effective security and law enforcement …

This is the prime starting point that Labor also adopts when considering this bill: the balancing of privacy considerations and the need for appropriate access for law enforcement agencies. Significantly, the bill contains provisions to set up a new warrants regime for stored communications. That is a great improvement on the current situation and Labor will be looking during the committee stage to see if it can be improved even further. The bill will also implement equipment based interception. That is a practical and sensible measure which Labor supports.

Perhaps most problematic in terms of the media comment and some of the public concerns that have been raised to date is the concept of B-party intercepts—that is, an intercept of an innocent party who is in regular communication with a person of interest. B-party intercepts are lawful, at least to some extent, now. Their validity has been established in the full court of the Federal Court in a decision of Flanagan v the Commissioner of the Federal Police. Although interpretations of this case vary, it seems that the reasoning has not been sufficiently clear for the Federal Police and the government to feel that they can confidently rely on this in pursuing B-party intercepts further. In any case, we would argue that the restrictions that exist, even if this case is relied upon, do not have the benefit of the protections. Clearly the government agree, given that they have proposed a statutory regime that puts in place some protections for the use of such B-party intercepts.

Mr Blunn, in his independent review, did make comments about B-party communications and recommended that ‘the Interception Act be amended to make it clear that B-party services may be intercepted in limited and controlled circumstances’. That is what this bill does. We can go through in some detail the controlled circumstances that it refers to. It does make it clear that this mechanism should be used only as a last resort by law enforcement agencies. It is not to be used just as a matter of course. These are important principles and protections that Labor believe should be supported. We will pursue any other detailed protections that are required in the Senate committee. If we propose any amendments, as may be possible in the other place when the debate takes place, they will have the benefit of the Senate committee’s review.

Although B-party interceptions have not been used since the case of Flanagan in 1995, it seems that this has been a matter of policy rather than of law. Should the government of the day change that policy, it would mean that we would be back to an open slather situation. As a responsible party, Labor want to grasp the opportunity to limit and carefully control the use of B-party intercepts. We will ensure, as I have said, that this issue is carefully examined during the committee stage and that, if Labor are not satisfied with the safeguards, we will move amendments to ensure that B-party intercepts are used safely, responsibly and with the appropriate privacy controls and safeguards. That is our promise to the community.

The bill also contains technical measures, which are set out in schedules 4 to 6. These measures would amalgamate two different class of offences and remove a redundant accountability provision. Also included are some housekeeping measures that would ensure that the act is up to date. Labor generally support the bill because of its strong emphasis on protecting privacy and the important practical assistance it will give to our law enforcement agents. I think Labor have already referred this bill to the Senate Legal and Constitutional Committee for its consideration so that there is a chance to discuss concerns raised within the debate in this House and within the broader community.

Let me go through some of the detail of the bill. Schedule 1 deals with stored communications. The first schedule in the bill seeks to define stored communications pursuant to recommendations that were made by the Blunn committee. Mr Blunn made a number of findings on this matter. Firstly, he recommended that the distinction between real-time and stored communications be maintained. However, despite calling for the retention of this distinction, the report also found that the act as it is presently structured was not an appropriate vehicle for accessing communications other than real-time communications and that the provisions governing access to stored communications were inadequate and inappropriate. Labor certainly agrees with this assessment. Therefore, the review recommended that access to stored communications continue to be authorised by search warrants but that those warrants be required to meet minimum prescribed standards.

The bill before us today sets up the new warrants regime for intercepting those stored communications. The bill will remove the provisions from a general search warrant and implement tougher provisions similar to those that are current for real-time communications. In effect, the bill will toughen privacy protections, making it harder to get a warrant. This schedule also introduces definitions for stored communications and a regime for access to those stored communications. This includes a general prohibition on access to stored communications; the regime for access to stored communications by law enforcement agencies; the process and regime for issuing, executing and revoking stored communications warrants; provision of technical assistance to a law enforcement agency by staff of a telecommunications carrier; a regime of evidentiary certificates by carriers and law enforcement agencies; an offence to criminalise unauthorised use or communication of accessed information or stored warrant information; a regime of permitted dealings with accessed information; admissibility of evidence; destruction of records unlikely to be used for the purposes of investigation; the regime for keeping of records, including access to that regime by the Ombudsman; the regime for reporting to the minister and the parliament; and civil remedies.

The new regime to be brought in by the bill generally acts to apply the same protections afforded to telecommunications to stored communications. The first schedule of the bill acts to clarify the status of access to stored communications and, at the same time, toughens the privacy provisions required to obtain one.

Schedule 2 deals with B-party intercepts. This schedule clarifies the position of the act on B-party intercepts—an issue that I have already touched upon tonight. A B-party intercept occurs when a law enforcement agency is monitoring person A for criminal activity. Say that person A is in regular contact with another party, person B, who is not the subject of an investigation. Under the present law, it is permissible to obtain a warrant to subject the second person, person B, to an interception in order to obtain information regarding person A.

I have gone through the contentiousness of whether people agree on what the current law is or is not, but I think it is worth flagging that there is some authority for this. Certainly my colleague in the Senate, on whose behalf I am appearing today, is keen to impress upon the House that B-party provisions in this section are not new powers, nor do they expand existing powers, as has been reported in the media. B-party intercept powers already exist and have been upheld by the Federal Court, even if there is some argument over the extent and basis for that decision. It is presently policy not to use those powers; nevertheless, until this case is overturned, they do exist. The bill before us today would, as I have said, impose greater controls than currently exist and would certainly clarify the situation for both the public and law enforcement agencies. Thus, it is an improvement on the current situation.

I turn briefly to the case of Flanagan v the Australian Federal Police because it seems to contain the key precedent relating to telecommunications interception. It was a 1996 Federal Court case. In that case there was a telecommunications interception warrant aimed at gathering information regarding a Mr Flanagan—or the A-party—but the subscriber to the service was his wife. So, in effect, she was the subject of the monitoring and was the B-party. In the ensuing court case, they alleged that the issued warrant was invalid because it had gone beyond the Telecommunications (Interception) Act as it then stood. However, the Federal Court rejected that argument, stating:

Until a communication to or from a service has been intercepted and recorded, it is impossible to know whether it would be likely to assist in an investigation, or even to identify the parties to the communication. If warrants were confined to authorising the interception of communications to which the particular person could be identified at the outset as a party, they would lose much of their efficacy. This cannot have been intended.

The court further stated:

There is no requirement that the prescribed offence be one in which the particular person contemplated by s 46(1) is involved.

So all communications made to and from the telecommunication service—even though the subscriber was the B-party, Mrs Flanagan—were held to be valid. I repeat: the idea that B-party intercepts are totally new is incorrect. However, the new regime does define and limit the applicability of B-party intercepts. B-party intercepts will only be available in circumstances involving investigations of an offence punishable by at least seven years imprisonment. Items 8 and 9 further restrict the use of these warrants to circumstances in which the applying agency has satisfied the issuing authority that all other methods of identifying the telecommunications used have been exhausted and that an interception would not otherwise be possible.

So the new regime covering B-party intercepts, rather than being an unjustified extension of existing powers, or a creation of entirely new powers—as some people have alleged—is and can be regarded as a limitation and clarification of existing powers. It can be seen to restrict, rather than expand, the B-party intercept powers. Nevertheless, as an aside, by spelling this out in the legislation, it must be acknowledged that it is possible that now the AFP may make more use of these powers, once they have been clarified in the legislation.

I think it is important that a Senate committee investigate these issues further to make an assessment on whether the extent of the provisions is necessary and appropriate and is balanced with the sorts of protections that both the government and the Labor Party have said they are keen to see put in place. I have a lot of confidence in the Senate committee process as being a good way to flesh out some of these highly technical issues, particularly given that the committee has already dealt with the Telecommunications Act and some proposals that cover these areas on several occasions. It seems that there is a fair amount of expertise that resides in that committee, and we look forward to the recommendations that it might make.

Schedule 3 of the bill imposes changes in equipment based interception. This is a technical change to allow the law enforcement agencies to apply for warrants for communications from a specific device rather than warrants for communications from a person. What happens—as I think has been mentioned in the explanatory memorandum—is that a person of interest can buy a mobile phone and potentially use hundreds of different SIM cards at low or no cost which they then switch through their phone. Naturally, this makes it very difficult for a law enforcement agency to identify and intercept communications belonging to that person based on a SIM card.

The amended changes would, as I have mentioned before, allow for law enforcement agencies to target the phone and to intercept communications arising out of that phone or other terminal device. This amendment would serve to make it less practical and less economical for a person of interest to evade interception through their exploitation of technology and would therefore, we hope, enhance law enforcement chances of interception.

The three schedules that I have just mentioned are the main amendments to the act contained in this bill. There are another three schedules in the bill that are largely designed to enact technical changes to the bill. Schedule 4 deals with class 1 and class 2 offences and removes the distinction between those classes. Previously, the act divided offences into these two classes and required that only class 2 offences be subject to privacy considerations by the issuing authority.

However, the Blunn review questioned this distinction, finding that it produced no meaningful difference in outcomes and recommended their removal. The current bill accomplishes this, abolishing the two definitions and placing both of them under the new definition of ‘serious offences’. Both types of offences are now subject to privacy considerations.

Again, essentially, this is an enhancement of the privacy provisions of the bill. Under the previous regime, only class 2 offences were subject to those considerations. Under this regime, all requests for warrants of telecommunications interceptions will be subject to these considerations. Again, Labor will support these changes, subject to any recommendations that arise out of the committee process.

Schedule 5 operates to remove the Telecommunications Interception Remote Authority Connection, or TIRAC, from the act. The Blunn review found that the TIRAC regime was costly but had a very low rate of detecting warrant errors. The review recommended that the powers of TIRAC be moved to the Attorney-General’s Department. For the benefit of the House, I quote from the explanatory memorandum:

TIRAC is a historical electronic accountability mechanism which requires each interception agency to lodge its interception warrants with the AFP.  The effect of this function is that the warrants do not take effect until the AFP receives the warrant and notifies the Managing Director of the carrier of the issue of the warrant.  TIRAC’s utility has been exhausted by technological developments, and it is therefore proposed that it be removed from the Act. 

The proposed amendments will continue to require all agencies to maintain comprehensive records as part of the interception regime, however, interception agencies will no longer be required to notify the AFP of the issue of the warrant before it takes effect. 

Essentially, these amendments act to move a number of the functions of TIRAC to the Attorney-General’s Department and to remove others from the act. As noted above, TIRAC has, since its inception, been superseded by technological developments, and it seems that the proposed change is appropriate.

Finally, schedule 6 of the bill introduces a number of technical amendments to the act. These are largely housekeeping measures designed to tidy up the act and ensure that it is up to date. These amendments include extending the powers available to the Victorian Office of Police Integrity under the act to allow them to disclose intercepted information in limited circumstances relating to the investigation of officers under various anti-corruption statutes. The amendments also include a number of other minor consequential amendments and corrections of drafting errors.

The bill before us is a necessary update of the technically antiquated legislation that currently covers telecommunications interceptions. Significantly, the bill will provide a new regime for the interception of stored communications, affording them the same protections that are currently afforded for real-time communications and strengthening the privacy provisions of the regime. Secondly, the bill will clarify the position of B-party intercepts. This, rather than adding a new power, will actually serve to limit the scope of these intercepts. They will only be allowed in cases of severe offences and in cases where all other options have been exhausted. This enhances rather than diminishes the current privacy protections afforded under the warrant.

The bill also introduces the ability for law enforcement agencies to apply for equipment based warrants. This is a necessary update to an act which was written at a time when landline based telephones were the primary means of telecommunications. It will provide an important tool against efforts to frustrate law enforcement through the use of newly developed technology loopholes in the present regime. Finally, the bill contains a number of housekeeping measures. It cleans up some functions that the AFP exercises, moving them over to the Attorney-General’s Department, and it eliminates an obsolete distinction between two classes of offences.

Through these measures, the overall thrust of the bill is to provide a necessary update to ensure that law enforcement agencies, when they are using the telecommunications interception regime, are able to better balance privacy concerns with the needs of those law enforcement agencies to access information, and also to update the regime to account for new technologies that were not developed or envisaged at the time of the original act. I conclude my remarks by reiterating Labor’s intention to consider whether the bill can be improved further through the scrutiny of the Senate committee process and through possible amendments in the Senate. With those remarks, I commend the bill to the House.

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