Steven Ciobo (Moncrieff, Liberal Party) Share this | Hansard source

I am pleased to rise to speak this evening on the Telecommunications (Interception) Amendment Bill 2006. This bill implements a number of recommendations of the Report of the review of the regulation of access to communications under the Telecommunications (Interception) Act 1979 that was conducted by Tony Blunn, commonly referred to as the Blunn report. I am pleased to speak to this piece of legislation because it does go some way towards ensuring that there is an adequate framework in place to assist our law enforcement agencies to deal with those various issues and investigations that they must undertake—those types of investigations which help to prevent criminal activity and help to crack down on criminal activity—as well as ensuring that there is safety in the community: the kind of safety that I know residents in my electorate of Moncrieff are looking for and expect the government to deliver to them.

This bill is the subject of debate in this chamber, and I am pleased to hear, in the main, positive comments coming from the Australian Labor Party about the three principal limbs that I will be discussing tonight—that is, the stored communications warrant regime, B-party interception and equipment based interception. On these three fronts, I welcome the broad level of support that the Australian Labor Party has indicated that it will be providing. I note, of course, that this support is in some way laden with a caveat, coming from the fact that the shadow minister indicated that the Australian Labor Party would be looking more closely at this in the committee stage when the bill goes to the other place. Notwithstanding that once again there seems to be some equivocation about whether or not to support the legislation, to the extent that that support is forthcoming, I certainly welcome it.

These amendments, as I said, go some way towards ensuring that there is in place an appropriate and adequate framework that will apply to the various agencies that need to conduct their activities under this act. Dealing with the Blunn report recommendations, which outline the need for overarching legislation regulating access to all forms of electronic communication, this bill establishes two of the three limbs that were proposed to be part of that overarching legislation, dealing with access to stored communications and an amended interception regime that incorporates, in effect, the majority of the existing Telecommunications (Interception) Act 1979. The third limb is regulating access to telecommunications data, and the government expect, as we have outlined, to be making further amendments in due course.

With respect to the stored communications warrant regime, the Telecommunications (Interception) Amendment (Stored Communications) Act 2004 does allow stored communications such as email and SMS that have been delivered to the recipient to be accessed without a telecommunications interception warrant. Those amendments, as the government foreshadowed and outlined, were intended as an interim measure pending the Blunn review. Accordingly, they sunset in June this year, as the shadow minister indicated.

Schedule 1 of this bill creates a new stored communications regime that is centred on a prohibition on access to stored communications held by a telecommunications carrier, and a stored communications warrant regime. A stored communications warrant will be available to enforcement agencies that are investigating an offence punishable by a maximum period of imprisonment of at least three years or an equivalent pecuniary penalty. The threshold covers a broad range of serious offences and is the same as that outlined in the Surveillance Devices Act 2004. Once accessed, stored communications can only be used or communicated for a purpose connected with the investigation of an offence that is punishable by a maximum period of imprisonment of one year or the equivalent pecuniary penalty.

The regime that is outlined in this bill will strictly regulate the use, communication and recording of information that is obtained by various agencies in accessing stored communications. This is consistent with the current use and communication of intercepted communications, so in that regard this bill simply provides an extension of the existing framework. Information obtained by accessing stored communications, as I outlined, will also be able to be used, but only where there is an offence that is punishable by a maximum period of imprisonment of one year or a pecuniary penalty of at least 60 penalty units.

The more controversial aspect of this bill is, of course, that dealing with B-party warrants. We have seen in recent times a great deal of media scrutiny and indeed a significant amount of media comment and stakeholder comment about B-party warrants. As the shadow minister outlined, B-party warrants are not entirely new. There has been some degree of their use in regard to activities by various agencies.

I notice the member for La Trobe is in the chamber. He certainly has a great deal of experience in and practical application of the various requirements of enforcement agencies to adequately fight against those who would seek to subvert our way of life. I will certainly welcome the comments of the member for La Trobe, who I know is a passionate advocate of these types of laws and recognises that we need to provide adequate tools for law enforcement agencies to function appropriately and provide adequate safeguards to the community at large.

The B-party interception framework as outlined in this bill relates to the interception of communications of a person who may not be involved in the commission of an offence but who will communicate with a person involved in the commission of the offence. Such a situation commonly arises, I am informed, in undercover operations where it may be necessary to intercept the service of an undercover police officer. Of course, it is recognised that generally there would be consent involved, but irrespective of that it is appropriate to have a B-party interception regime in place. The amendments provide that, where an interception agency satisfies an issuing authority that all practicable methods of identifying a telecommunications service used by the person of interest have been exhausted or that it is not possible to intercept the service used by the person of interest, the agency may intercept the telecommunications service used by another person.

This amendment has been the subject of much media debate and concern by certain members of the community. Indeed, I harboured some concerns when this issue was first raised with me. However, on balance, when one considers the necessity for agencies to utilise various legislative tools in order to focus their efforts on criminals engaged in criminal activity, it seems to me appropriate that, with adequate safeguards that set in place the necessary limits that must be met by enforcement agencies, a B-party interception warrant need not be considered an overly intrusive incursion into one’s privacy. Granted, prima facie it does appear that innocent third parties can have their telecommunications intercepted. In reality, this would only occur—as section 9(3a) clearly provides—when the Attorney-General has ensured that there has been an exhaustion of all other practicable methods of interception of the telecommunications of the person in whom law enforcement agencies are interested.

Given that the threshold is that agencies have used and exhausted all other practicable methods, the question then becomes one of: do we as a government sit back and allow those who are technologically savvy or criminals engaged in criminal enterprise who have found some other way to avoid detection, scrutiny or interception by various government agencies to continue their activities outside the bounds of the law? On balance, given the appropriate threshold is in place, which is that all other practicable methods have been exhausted, I am of the view that it is appropriate to allow B-party interception warrants. Furthermore, given that at common law there already exists the ability for this to occur in limited circumstances, it seems prudent and wise for the government to legislate for a framework that very explicitly outlines the criteria that must be taken into account with respect to the issuing of a B-party interception warrant. More importantly, there are the various factors that the Attorney-General and, indeed, the courts must satisfy themselves of before a B-party interception warrant could be authorised.

For example, the issuing authority must also have regard to the following additional factors: the gravity or seriousness of the offences being investigated; how much the privacy of any person would be likely to be interfered with through the interception; how much the intercepted information would be likely to assist with the investigation by the agency of the offence; how much the use of such methods would be likely to assist in the investigation by the agency of the offence; to what extent alternative methods of investigating the offence have been used by, or are available to, the agency; and how much the use of such methods would be likely to prejudice the investigation by the agency of the offence.

Taking these issues into account, I am satisfied that a B-party warrant in the regime that this bill seeks to put in place would contain appropriate safeguards to one’s privacy but, at the same time, remove the shackles that currently exist due to agencies not having the full scope of powers to give them sufficient opportunity to intercept the telecommunications of those involved in criminal enterprise.

The third, and perhaps less controversial, aspect of the bill is equipment based interception. This is relatively straightforward. It deals with those instances where the various agencies—the Federal Police and ASIO, for example—need to intercept equipment. As the shadow minister has detailed, you might have a situation where someone engaged in criminal or terrorist activity is using a number of different SIM cards on a mobile phone to try to evade interception. This bill would enable interception of the actual equipment. So, although various SIM cards might be used in the equipment, the piece of equipment itself could be intercepted, thereby ensuring that agencies with an interest in that person have the ability, where the criteria have been satisfied for the equipment based inception warrant, to intercept that equipment.

There are a number of housekeeping matters in the bill which I do not intend to touch upon as the Attorney-General and the shadow minister have done so already. I would summarise, though, by saying that concerns have been raised that there is 26 times more chance of someone having their telephone intercepted in Australia than, for example, in the United States. This kind of comparison is completely unrealistic and completely wrong. The United States differs to Australia in a number of significant ways. Direct comparisons between Australian and US statistics are therefore entirely misleading.

Statistics from the United States published on interceptions do not include those interceptions that are considered too sensitive to be reported. That is the first point of difference with the Australian system. Investigators in Australia do not have the discretion to not report certain interceptions regardless of the level of sensitivity surrounding them. In addition, United States law allows one warrant to authorise the interception of services used by a number of people: for example, when it becomes possible to identify criminal associates of the original suspect. Again, this stands in stark contrast to the situation in Australia in which a warrant must be authorised for the telecommunications service or services of only one person who is named in that particular warrant. That is another significant difference between the collection and collation of statistics in Australia and in the United States when it comes to interception.

Although there will be those who will run the scare campaign in the community that the passage of this bill is effectively signing away the right to privacy and is further fuel on the fire that allows government agencies to intercept telecommunications at will, those assertions are incorrect. The reality is that this bill puts in place a framework that is able to be used by both law enforcement agencies and the public more broadly. It establishes a framework that clearly outlines the various threshold requirements as to when a warrant is able to be issued and the various points that must be considered. With respect to B-party warrants, this bill ensures that there are adequate safeguards. Further, it moves from common law to statutory law a point of view that specifies that all other practical methods must have been exhausted. I welcome these reforms. I think it is important that there be in place a strong framework which enables the government and its agencies to effectively operate to ensure the safety and security of the community at large and at the same time affords to our various investigative agencies the kinds of powers that they need to do their job appropriately but without sacrificing those liberties which so many of us hold dear. I commend the bill to the House and I look forward to the Australian Labor Party supporting this bill in its current form as it moves through the Senate and its various committee stages.

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