Peter Garrett (Kingsford Smith, Australian Labor Party, Shadow Parliamentary Secretary for Reconciliation and the Arts) Share this | Hansard source

The Telecommunications (Interception) Amendment Bill 2006, amongst other things, amends the Telecommunications (Interceptions) Act 1979 and seeks to implement the recommendations of the Report of the review of the regulation of access to communications, which is referred to as the Blunn report. There is a significant history of consideration by this parliament of the extension of powers that are constantly sought by police and relevant authorities to access communications. This complex history, which I have been reading in the past 24 hours, brings us to the consideration of this bill. Significantly, the bill proposes the interception of communications of persons who are not specifically considered to have warranted a communication—in other words, what is known as B-party, or third-party, interceptions. I will return to consideration of that later in this speech.

This bill, by implementing the Blunn recommendations, provides a legislative framework for limits on law enforcement access to two sets of communications: real-time communications—conversations on the telephone, for example—and stored communications, such as emails. The House welcomes the opportunity to see the Blunn recommendations reflected in proposed legislation. We cautiously support and welcome the bill, but we believe that further consideration by the Senate committee will be necessary, when the bill travels to the Senate, of some of the specific issues in relation to the granting of powers that is considered under this legislation.

ASIO and the law enforcement agencies are granted new powers, and it is the extension of those new powers that the parliament needs to acknowledge and scrutinise very closely. There have been profound improvements in communications technology since the legislation of 1979. Persons use a variety of means of communication now, but most particularly mobile phones, with SMS messaging and texting. Additionally, emails, as we are all aware, have become a constant feature of the communications that take place in everyday life. At the same time, the mobility of the mobile phone and the capacity to substitute SIM cards and to have two, three, four or five handsets means that authorities—I think reasonably—are seeking ways to access relevant communications where they have a legitimate need to do so.

By extending the TI warrant regime to stored communications like emails, the bill purports to limit the so-called common-law access to interceptions by law enforcement agencies. The previous legislation, the telecommunications bills of 2002 and 2004, had confronted this matter and essentially had come to grief because the Attorneys-General and the Australian Federal Police, it seemed, had different views on whether interceptions of stored communications would be considered appropriate under the existing legal framework. When the Senate Legal and Constitutional Legislation Committee heard evidence in 2004 that the Australian Federal Police were using section 3L of the Crimes Act to access stored communications—communications that were stored by the internet service provider without a warrant—and that the Attorney-General’s Department and the AFP had different views about that matter, it was clear that we needed further consideration of the legal issues and also the most appropriate legal framework for access, if there were to be access, and under what conditions. As a consequence, those bills—or at least the provisions of those bills—did not proceed. The subsequent bills did allow for stored communication to be accessed but a sunset clause applied. We are now looking at the review and the recommendations as they are embodied in this legislation.

When the second reading speech was given on 16 February, paragraph 10 of the speech referred to the bill containing ‘amendments to enable interception agencies to obtain an interception warrant in respect of the communications of an associate of a person of interest’. It is on that very matter that the discussion—and, I think, the Senate committee’s consideration—will essentially rest, because, for the first time, we will have the covert capacity granted to intercept the communications of somebody who is in no way suspected of any offence. That represents a considerable extension of the original law as it was embodied in the 1979 legislation.

I need to refer to two aspects of the bill. The first relates to the question of stored communications. Schedule 1 of the bill refers to stored communications. I note the comment by my colleague the member for Denison on this matter. He makes a very good point that, where the legislation applies and allows for an extension of access to stored communications, it is in the manner of a warrant but there is no notice, and no legal rights apply, which would normally be the case with a warrant. In other words, it is not considered that we are putting in place under this legislation the same sort of strict regime that exists for voice transmissions. The voice transmission regime has a higher test; the stored communications proposed test is lower.

There is an argument, which I think was well put by the member for Denison, that if in fact access to stored communications has the effect of a warrant then the conditions that apply to that access should contain the same characteristics that have traditionally applied in the common law when an application for a search warrant is made, specifically in relation to the person for whom the warrant is being sought. In this case, if you are simply looking for evidence, you need to have some notice of the evidence. But, under the proposed legislation as it exists, the capacity for you as a third party to insist on knowing what the nature of that ‘warrant’ may be is clearly less.

Schedule 2 of the bill, which refers to B-party communications, is of particular significance. It probably ought to be properly titled ‘third-party communications’. As proposed under this bill, we will have what is known as ‘B-party interception’. The law will now permit an issuing authority to exercise an intercept against a third-party communication, and the third party will have no knowledge of that interception. It is true that target parties are better able to get around the capacity of interceptions by switching phones, SIM cards and so on and that parliament must be able to permit agencies to intercept those communications, but to what extent the target intended and the interception intended then essentially bleed out to any other communications that are taking place between the target and other parties really goes to the crux of the criticality of this proposed legislation. That is something that I urge the Senate Legal and Constitutional Legislation Committee to examine very closely. The fact is that the proposal as it now stands allows for the additional capture of incidental or collateral communications with others.

In the light of the proposals that the Attorney-General has coming into this parliament later in the year—particularly the proposal, yet to be seen by us in the House, of a national identity card—I think this raises the very profound challenges that the new digital and communications technologies present to us as law-makers, as well as the challenges that they present to the law enforcement agencies. That balance, which Mr Blunn referred to in his report—the balance between the need to ensure the privacy of citizens of the Commonwealth, as against providing the opportunity for law enforcement agencies to do their jobs effectively—is becoming a more highly calibrated and difficult area of consideration. You can very quickly imagine the prospect for communications of this kind, particularly in the way they are transmitted at this point in time, to become part of a larger body of information and material which is capable of being stored—and it is information about all of us. So, when we talk about safeguards in this place, I think we very necessarily reflect on the role that law-makers have to literally ensure that the safeguards are in place and will be capable of being administered over time.

Labor feel very strongly that issues of unintended consequences of legislation of this kind need to be considered by the Senate committee. Certainly the history of the expansion of powers that have been sought by agencies and of proposals that have been brought through and subsequently amended over time indicates that the amount of caution and the necessity to look at safeguards that we have brought to this debate have been generally of benefit, not only to the community but to the consistency of laws as they exist now.

To the extent that this bill provides greater clarification and seeks to implement the Blunn recommendations, or at least some of them, it is welcome. It is clear that the present situation is unsatisfactory and that we do need tougher safeguards than currently exist. It is also clear that the protection of privacy is one of the fundamental considerations that the parliament and also the Senate Legal and Constitutional Legislation Committee need to consider. Mr Blunn referred to B-party intercepts being acceptable in limited and controlled circumstances and to their existing as a last resort. The question of whether or not the rights for these intercepts exist has been debated somewhat in the House, but I think the point needs to be made very strongly that there is a need to limit and carefully control any B-party or third-party intercepts that are contemplated by authorities. Certainly, as indicated by the member for Gellibrand, Labor will look closely at the debate and the consideration by the Senate committee and, following that consideration, will move additional amendments if necessary.

I want to refer briefly to the assurances that have been given by the Attorney-General on this matter and make the point, as I have in the House before, that I have some concern—some anxiety, in fact—about the Attorney-General’s exercising of his responsibilities as the first law officer of the Crown. In the past, the Attorney-General has attacked members of the judiciary, and he has been clear in his comments on that basis. He has chosen not to argue strongly for an Australian citizen detained overseas, David Hicks, to have the most adequate and comprehensive legal protection that ought to be available to him in the circumstances, but rather has relied on the provisions of a military commission. There is substantial legal opinion, not only in this country but in other places, to say that that is not sufficient for the protection of the rights of a citizen.

The Attorney-General is sometimes a little mischievous when he talks about supporting legislation of this kind and, for example, quotes things like article 3 of the Universal Declaration of Human Rights. The Attorney-General says that governments have a responsibility to protect people’s rights to life, safety and security. But article 3 does not say that; it says:

Everyone has the right to life, liberty and security of person.

Sometimes the Attorney-General leaves out ‘liberty’ when it does not suit his purposes. The question of liberty is still essentially important in consideration of this legislation, in particular where we are providing, for the first time, the opportunity for law enforcement agencies to be able to intercept, in a covert manner, communications with third parties or associates of someone in whom the law enforcement agencies have an interest but who have committed no crime. That is an extremely large threshold over which this parliament may now seek to travel. It would need to do it with the utmost caution and take into account, I hope, the deliberations of the Senate Legal and Constitutional Legislation Committee and any amendments to this legislation that Labor seeks to bring back.

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