Ed Husic (Chifley, Australian Labor Party, Shadow Parliamentary Secretary to the Shadow Treasurer) Share this | Hansard source

It is a pleasure to follow my colleague and friend the member for Greenway on this motion. This report looks specifically at section 313 of the Telecommunications Act 1997, which gives Australian government agencies, including state government agencies, the power to get assistance from the telecommunications industry when upholding Australian laws. In this day and age, people are very mindful of the ability governments have to impact on the operation of the internet. The common-sense view is that governments should be entitled to act when they believe there are serious issues, particularly from a law enforcement perspective, that need to be dealt with very quickly. For example, with child abuse on the internet, people doing terrible things, I think the community would expect the government to act quickly.

Elements of the way section 313 operates are very important and we need to make sure that the way the legislation is used by government is continually enhanced, reviewed and, on occasion, improved. I commend the report because it recommends a better way of trying to deal with the operation of this section. It also contains a variety of different reviews. The Communications Alliance are quoted in the report as saying section 313 specifically allows providers to engage with law enforcement agencies when a matter does not fall under any of the other provisions in the act or in the Telecommunications (Interception and Access) Act and that it is also quite a useful provision when, understandably, the law has not kept up with technological development. That is a positive view expressed by members of the Communications Alliance, whom I would commend as providing a sensible, reasoned voice within the sector. However, contrary views are also picked up in the report. For example, Australian Lawyers for Human Rights argues that no government agency or officer should be permitted to disrupt online services on the basis that they are potentially in breach of Australian law. A diversity of views exists. I think the argument there is that, if there is a blind spot within the law, we should correct the blind spot within individual laws. There is probably some merit in that argument but, until such time as that is achieved, you do need to have section 313 operating in the best way possible.

One of the big motivators behind this inquiry is an incident that the member for Chifley referred to in her contribution tonight. Back in March 2013, the Australian Securities and Investments Commission used section 313 on 10 separate occasions to block websites linked exclusively to investment scams, to cold-calling frauds. Good intentions drove ASIC to act in the way that it did. I may be taking a very big leap of faith, but I think that it is a reasonable assumption that ASIC was motivated to act by good reasons. But there were massive unintended consequences. What happened was that nearly 1,000 sites were blocked as a result of ASIC's intervention back in March 2013. It was claimed that there was limited use and careful targeting. But that is simply not based on the evidence. There was inadvertent blocking of over 1,000 legitimate websites, including Melbourne Free University.

In 2013, around 26 March, and again 3 April, ASIC became aware that a serial internet fraud offender was operating fraudulent websites and requested that they be blocked. On 4 April, Melbourne Free University became aware that its website had been blocked, but they did not know by whom or why. When questioned, the ISP revealed only—this is to Melbourne Free University—that the block had been requested by a government agency. There was this massive impact on a number of different websites. A subsequent review of section 313 requests alerted ASIC to a blocked IP address hosting in excess of 250,000 websites. The blocks were removed, but obviously this has forced a great deal of focus on the way in which this section operates.

The committee report does make a number of recommendations about a whole-of-government approach being utilised to ensure that this type of thing does not happen again. It also specifically, I note, in the recommendations picks up on what happened in ASIC, where there was a belief that particular personnel operating within ASIC did not have the capability or understanding and the breadth of knowledge required to undertake this type of action, and that this inadvertently led to those 1,000 sites being blocked. The recommendations in this report indicate that that needs to be addressed so that in every agency there is a person with the technical proficiency to be able to manage this.

Now, why has my interest been activated on this? My colleague the member for Greenway made reference to the fact that other legislation in the copyright realm is coming up that will be debated shortly. That will provide full powers to site block as well. If we have one section of the law that is being activated to block sites and people have experienced massive disruption as result of it, the genuine concern would be that if this other legislation were to come to pass and become reality, enabling blocking to occur for what is believed to be access to sites that are breaching copyright, then there would be a reasonable concern as to whether or not the types of actions that we saw as a result of ASIC's intervention in March 2013 would repeat itself. I think it is a legitimate concern.

You only need to look at recent history. Back in August 2013, BBC Radio Times, with hundreds of other websites, was caught up in a massive block as a result of rights holders pursuing their rights through the courts. The rights holder, in particular the Premier League, had a battle with an unrelated copyright infringing site. The accident occurred because the sites shared the internet protocol address with FirstRowSports, which offered unauthorised streaming of football games. The internet providers had been ordered to block the IP address and, because of a simple error, BBC was blocked. When they approached the actual rights holder to get this overturned, the rights holder indicated that a court action had been enforced and that they were reluctant to actually change the position of blocking, preventing BBC from providing its service to users.

This has happened overseas; this is one of my concerns about site blocking. The power certainly exists for legitimate reasons involving law enforcement. But when it strays beyond that and the capability of certain government agencies to be able to undertake or, for example, other ISPs being required to give effect to court orders or other legal mechanisms, the question does arise, based on previous international and local experience, whether the capability exists. This is why we do need to be mindful that site blocking, if it becomes a reality, does have the potential to go haywire, and it will be interesting to see who will be left with the can and required to clean up as a result.

So coming back to this report, there are some of sensible recommendations here that I think do need to be taken into account by the government. Given Minister Turnbull made reference to the committee, I imagine that he is open to these suggestions being put forward, and it will be interesting to see if actually responds to the report. Other reports that he has had, for example, on IT pricing, he has sat on for nearly two years and done absolutely nothing about it. It will be interesting to see how quickly he actually responds to this, and if he is mindful of some of the recommendations, particularly in the context of outcome upcoming debates we will have on copyright.

Debate adjourned.

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