Michelle Rowland (Greenway, Australian Labor Party, Shadow Assistant Minister for Communications) Share this | Hansard source

I am pleased to have the opportunity to make some brief comments in relation to the most recent report of the House of Representatives Standing Committee on Infrastructure and Communications, Balancing freedom and protection. As a former practitioner in this area, I think this inquiry has thrown light on some key issues that affect all of us as users of communications services. From the start, it is important to note the remit, the terms of reference, of this inquiry:

… the Committee will inquire solely into and report on government agency use of section 313—

of the Telecommunications Act 1997—

for the purpose of disrupting illegal online services.

The first point to note in relation to that is that section 313 is contained within part 14 of the Telecommunications Act, which sets out a series of national interest matters which primarily go to the obligations on carriers and carriage service providers to do everything that they can to assist law enforcement agencies in fulfilling their obligations under this act but also in general. It is important to note that part 13 of the act sets out the specific prohibitions against the use and disclosure of certain information that is otherwise protected under the Telecommunications Act. In summary, section 313 puts an obligation on carriers and service providers in connection with the operation of their networks or facilities or their supply of carriage services to do their best to prevent telecommunications networks and facilities from being used in, or in relation to, the commission of offences against the laws of the Commonwealth or of the states and territories. This provision has been in our legislation—obviously in the 1997 act but also in predecessor acts—in some form for as long as I can remember.

This inquiry primarily arose from the issue that happened in 2013 where ASIC mistakenly blocked around a quarter of a million websites due to a misunderstanding of how IP addresses work. In August 2014 ABC online reported:

The corporate regulator has revealed it accidentally blocked access to 250,000 websites because its staff misunderstood a basic feature of internet technology.

…   …   …

In a submission to a parliamentary inquiry—

this one—

looking into which government agencies should have the power to block access to websites, ASIC revealed the staff who ordered the blocks did not realise that suspending access to the site would affect many more hosted on the same internet protocol (IP) address.

…   …   …

In the process, it blacked out more than 1,000 other sites hosted at the same IP address, including a public education group called Melbourne Free University.

That is, essentially, the genesis for this inquiry. The committee has released its report, and I am pleased to go through a couple of elements of that, because it highlights what I think is the most important outcome, and that is that, while these provisions certainly have an important role to play in fulfilling national interest obligations, the need for greater transparency and accountability, including accountability of who, in a very practical sense, is fulfilling the obligation, must be addressed.

There were 21 submissions to the committee and 23 witnesses. In the inquiries, I can attest to the broad level of expertise but also interest. We had government agencies, as well as ASIC itself, and experts in law enforcement and people with technical and very specific engineering expertise who assisted in this inquiry. It is no accident that the inquiry report contains large slabs of evidence from those witnesses, experts in their field. I will just highlight a couple of items in the report, one of them being from the Australian Federal Police, looking at the use of these provisions to date. In paragraph 2.15 of the report, the AFP noted that it:

… only uses section 313 to disrupt illegal online activity where other mechanisms to prevent the activity have been or are unlikely to be successful.

You clearly see from the AFP's evidence that these provisions are not necessarily the first port of call in conducting their business. The AFP indicated that their use of section 313 was actually not extensive. Between June 2011 and August 2014, the AFP had issued 23 section 313 requests for the purposes of blocking websites used for illegal activity. The majority of these requests were made in relation to the blocking of Interpol's worst-of list in relation to online child exportation material, and I am sure no-one in this parliament would disagree that they are very important provisions to block some of the most heinous crimes that we know to exist.

In some of the committee's conclusions on the need for section 313 to continue, it noted that the protection of privacy was and remains one of the principal aims of the legislation but that what we need is targeted and proportionate use of section 313 around these issues of transparency and accountability. It was the ASIC incident in 2013 that led to questioning of the way in which these provisions are used. To summarise, transparency and accountability to disrupt illegal online services was broadly acknowledged in the evidence that was given to the committee.

The committee considered the use of block pages as being, by and large, essential. Those block pages should identify the agency which made the request, the reason for the request, an agency contact point and review procedures. The committee went on to note in paragraph 4.36:

Avoiding the inadvertent disruption of non-target websites is chiefly the outcome of technological competence and robust administration. Mistakes will be avoided through the use of robust or transparent processes.

I do note that some of the organisations which gave evidence, including Internet Australia, have said that they look forward to assisting the government in framing whole-of-government guidelines as proposed by the committee. As reported by Rebecca Merrett, Internet Australia CEO Laurie Patton said:

We look forward to assisting the government in framing the 'whole of government' guidelines…

Internet Australia welcomed the report, saying it would work with the government to fix the 'flaws' in the current legislation.

These issues of accountability and transparency really do go to the heart of the recommendations of this committee report. It is on this note that I absolutely feel the need to mention the comments made by Senator Scott Ludlam, who I do not think has comprehended the terms of reference here. In his media release of 1 June, he claims that the committee has 'signed off on a committee report that recommends a basic level of technical literacy be applied within departments' and talks about 'an unregulated site blocking regime just getting the nod from a committee that appears to have slept through much of the evidence put to it'. I do not recall seeing the senator's submission for a start. I am happy to be corrected if he put one in. But I do not recall seeing his evidence from the start. The reality is: yes, this is a complex area, but I believe from the senator's comments that he seems to be conflating issues of another bill and another inquiry of substance that will be coming up very shortly on issues of copyright. But this inquiry was looking purely at the blocking of illegal websites.

I know my colleague the member for Chifley will agree with me on this point: too often when these issues are examined we fail to take into account the most important party in this whole matter: consumers. We absolutely need to consider the rights of consumers. Of course, as the very title of this report indicates, it is about balancing. I fear that Senator Ludlam seems to have mistaken this issue of balancing consumer rights with a very legitimate exercise of powers under the Telecommunications Act. Consumers do need to be at the heart of everything from access to content to pricing for IT goods and services. That goes without saying. But to simply go in and say that this has been signed off without any consideration of the evidence is plain wrong.

See this speech in context