Daryl Melham (Banks, Australian Labor Party) Share this | Hansard source

I rise to speak to the Telecommunications (Interception) Amendment Bill 2006. I note that this bill will be referred to the Senate Legal and Constitutional Affairs Committee for examination and report. I for one hope that the committee, in its report and examination, will look at a couple of aspects of this bill that cause me real concern. The bill has two main features. Firstly, it establishes a regime under the Telecommunications (Interception) Act to enable the interception of stored communications such as emails in transit on a web server’s computer. Secondly, it enables the interception of what are called B-party telephones.

Whilst the stored communications provisions are generally fine because they make it clear that the communications can only be intercepted with a TI warrant and not merely a search warrant, which is theoretically easier to obtain, the issue that needs rethinking is the proposal that stored communication warrants could be obtained for a very wide range of investigations that would not be able to utilise TI warrants. The agencies able to use these stored communication warrants would include ASIC, Customs and the Australian Taxation Office, none of which can use TI warrants now. Currently, TI warrants can only be obtained to investigate offences carrying a maximum penalty of seven years or more. However, stored communication warrants could be used to investigate offences including non-criminal civil penalty cases carrying maximum penalties as low as three years and, once accessible by an agency, stored communications could be used in the investigation of offences where the maximum penalty is as low as a fine of 60 penalty units, which is $6,600.

This aspect of the bill is set out on page 12 of the explanatory memorandum, which is a frank assessment of the bill. It is worth reading again some parts of that explanatory memorandum. There is a concession, which says:

• There is a wider range of issuing authority. Whereas interception warrants may only be issued by eligible judges or nominated AAT members, stored communications warrants may be also be issued by these authorities as well as any other Commonwealth, State or Territory judge or magistrate.
• There is a lower threshold to be met. Interception warrants are only available in relation to specified serious offences, as defined in subsection 5(1). While these are varied in terms of their penalties, the general rule is that they relate to offences with a maximum term of imprisonment of at least seven years. In contrast, stored communications warrant are available for the investigation of these serious offences as well as offences with a penalty of imprisonment for a maximum period of at least three years or a pecuniary penalty of at least 180 penalty units for individuals and at least 900 penalty units for corporations. In addition, stored communications warrants can be obtained as part of statutory civil proceedings which would render the person of interest to a pecuniary penalty of at least 180 penalty units for individuals and at least 900 penalty units for corporations. Consistent with the lower threshold, stored communications that have been lawfully accessed can be used as part of the investigation of matters with a lower threshold (at least one year imprisonment or at least 60 penalty units for individuals (300 penalty units for corporations).
• Reflecting the wider agency access and the lower threshold to be met, the reporting requirements for stored communications warrant are not as burdensome on the agencies as the requirements for interception. Reduced reporting requirements are also consistent with general search warrants provisions.

So there is an admission of an expansion of access and a lower threshold test. Historically, TI warrants have applied to more serious penalties with a maximum of seven years or more. I think the Senate committee should look at whether that is necessary or whether it needs to be limited.

I come to what I consider to be the next gross invasion of interception on individuals. In the current climate the Attorney-General, on behalf of the Commonwealth, and the agencies are further and further seeking more powers. Frankly, they are not making their case. Theoretical situations and wish lists are being put to us. We are getting into a situation whereby the underpinning of this legislation when it was first put in place and the protection mechanisms and the assurances that were given about there not being future expansions are all being swept under the carpet. I know we are living in a new environment, and I know that interception is an important tool in authorities’ pursuit of criminals and criminal conduct, but we are getting to the stage where the broader use of these tools is in my opinion—I am not saying it is my party’s opinion—going too far.

I have been advised that, in respect of B-party intercepts, the bill dramatically widens TI powers and will lead to the greatest incursion upon privacy ever endorsed by the federal parliament. If the police establish that all other methods of identifying the phone service used by the target have failed or that it is not possible to intercept the target’s phone, they will be able to tap the phones belonging to the target’s family, friends, associates and lawyers so long as the police can demonstrate that it is likely that the target will contact the B-party on that phone. There is no need to show that the B-party is suspected of any criminal complicity. There is no need to show that the target will make calls from the B-party’s phone. There is no need to show that the target will talk to the B-party about any relevant criminal activity. Those limitations have not been imposed by this legislation.

The B-party warrant can run for 45 days for police warrants and for three months for ASIO warrants. It is often difficult to determine exactly which phone a target is using, so B-party warrants will be common. Once a target’s phone has been identified, I am advised that there is no requirement that the B-party intercept cease—the police can and will continue to tap the B-party phone until the warrant expires. So innocent people, with no involvement in a crime, will have their phones tapped, possibly for months at a time, simply because they might receive a call from a suspect. That is a matter that the committee needs to look at. On my reading, and from what I have been advised, this is a massive expansion of powers and I do not believe there are sufficient safeguards or protections. I believe the threshold is too low in relation to that activity.

On my reading of the bill and from what I have been advised, the legislation will allow a breach of legal professional privilege. If there is contact between solicitor and client or barrister and client we all know that legal professional privilege applies. This legislation will allow a breach of that legal professional privilege. It will also mean that, inevitably, some members of parliament could have their phones intercepted. We are no special category per se, but if we have constituents of a suspect nature who make contact with us, on my reading of this bill, our phones can be tapped. The explanatory memorandum, on page 32, says:

The amendments provide that where an interception agency satisfies an issuing authority that all other practicable methods of identifying the telecommunications service used by the person of interest have been exhausted, or that it is not possible to intercept the telecommunications used by the person of interest, then the interception agency may intercept the telecommunications service used by another person. Interception of the so-called B-Party service will only be available where the interception agency can satisfy the issuing authority that the person being intercepted will likely be contacted on that telecommunications service by the person of interest.

That is the threshold for B-party interception. So what we are doing in effect is as I said earlier: there is no need to show that the B-party is suspected of any criminal activity, there is no need to show that the target will be making calls from the B-party’s phone and there is no need to show that the target will talk to the B-party about any relevant criminal activity. I say that is a huge expansion and something the Senate committee should have a look at to see whether the case has really be made out for that.

It seems to me that what we are getting is telecommunications interception now being used in a lot of respects to overcome a lot of lazy investigation, and so this is the preferred method of investigation. There is no doubt in my mind, and I do not argue against it, that this is a useful concept and an important tool for investigators and prosecuting authorities. But I argue that there must come a time when you draw the boundaries. There is a point that you do not go beyond and where I think your citizens are entitled to say that privacy considerations prevail in this instance. I am not one of those who believe that at times, in certain situations, privacy should not be wound back, but you have got to get the balance right. It is an argument about the balance. But it seems to me that, before you go into the third-party telephone conversations of other people, you have to have a level of suspicion of their involvement in this sort of activity, not necessarily just innocent parties.

This legislation will also mean that there is basically carte blanche to listen not just to a suspect but in many respects to the suspect’s family—the wife, the girlfriend, the son or the daughter. This will mean they can listen in to their phones for lengthy periods of time. There is no suggestion that, once you establish the phone that the other person has got, you drop off the intercept. There is a time limit on the B-party intercept, but the 45 days and the three months can still be fully exhausted.

There is one matter I want to raise, and it is where the Attorney had a bit of a crack in his second reading speech at critics of Australia’s interception regime. He said the critics:

... have again advanced old arguments that Australian agencies intercept communications at many times the rate of United States agencies and others.

…            …            …

Statistics published in the United States do not include interceptions considered by the investigators to be too sensitive to report. Investigators in Australian law enforcement agencies do not have this discretion and therefore all interceptions must be reported.

He goes on to say that, in America:

This results in fewer statistical returns than under Australian law, which allows a warrant to authorise the interception of a single telecommunications service or the services of one named person only.

In his second reading speech nowhere does the Attorney-General argue that the statistics put forward in relation to Australia were overstated. He argues the comparison; he argues that obviously there is underreporting in America. But he was unable and did not mount an argument against the statistics. The statistics that I produced in a press release dated 15 September 2002, with figures for the periods ranging from 1988-89 to 2000-01, show that there has been a dramatic increase in the number of telephone interception warrants for law enforcement purposes. In 1988-89, there were 246. In 1998-99, there were 1,284. There were 1,689 the next year, and 2,157 the year after. I anticipate that I will be updating this table and issuing an updated release, because it is important that those figures go out into the public domain.

The other interesting thing is that in his second reading speech the Attorney did not say that the publicly available figures from the US were inaccurate, either. A lot of effort was made at the time to produce those statistics. The underlying thing that the statistics show is that there is going to be an increasing use of this technology, because there is no doubt that it is an efficient way for enforcement agencies to operate. That is why we need to be cautious in terms of our safeguards and the privacy protections.

We need to be cautious in how far we expand the use and availability of these sorts of services. I do not think it is sufficient to say, ‘This will help solve crime, so let’s throw down the privacy protections.’ In the pursuit of criminals, we have to have a standard of proof, and that standard is ‘beyond reasonable doubt’. That means that in some instances people who may well have committed crimes are released by judges and juries because of insufficient evidence. If you lower your standards too far, you will end up picking up innocent people. They will get swept up, and that should not happen.

See this speech in context