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

Sharon Grierson (Newcastle, Australian Labor Party) Share this | Link to this | Hansard source

I rise today to speak on the Telecommunications (Interception) Amendment Bill 2006. The intent of this legislation is to amend the Telecommunications (Interception) Act 1979 to implement certain recommendations of the Blunn report on the regulation of access to communications under the act.

Clearly, the world is changing rapidly, and the way we communicate with each other has evolved from telegraph, fixed telephone and postal delivery to mobile phone, text messages, emails and digital communications in a very short space of time. These changes have brought with them huge benefits to individuals and to our community in efficiency, convenience and productivity. But they also bring new opportunities for those who seek to plan and carry out crime. People who would commit crime can use this new technology to improve their own efficiency, convenience and illicit productivity. The changes in communications technology have clearly brought with them changes in the ways in which people use those technologies for criminal purposes. It stands to reason, then, that the way in which our law enforcement agencies approach the prevention and investigation of crime must also change.

I am pleased to see that the government has responded to the recommendations of the Report of the review of the regulation of access to communicationsknown as the Blunn report. Labor pushed strongly for an independent review of access to communications by enforcement agencies. I am particularly pleased to note Mr Blunn’s first finding:

... the protection of privacy should continue to be a fundamental consideration in, and the starting point for, any legislation providing access to telecommunications for security and law enforcement purposes ...

I firmly believe that all of us, as legislators, should bear those words in mind as we consider this legislation. No matter how quickly telecommunications and technologies change, and how quickly criminals change their behaviour to take advantage of this, there is one thing that never changes—the right of every Australian citizen to have their privacy and civil liberties protected.

The right to privacy is fundamental, and we must not let our quest to prevent crime impinge upon this right. No matter how quickly the world changes, there are some fundamental rights which must always be defended. That is why I have to say that I have mixed feelings on this legislation. The legislation is an attempt to clarify the powers of law enforcement and security agencies to access both real-time communications and stored communications—and, of course, stored communications now are very extensive. It is only sensible to do this. But I do have concerns about the implications of this legislation. I am glad to see that it has been referred to a Senate committee for closer scrutiny, and I hope that any unintended consequences are revealed and removed from the legislation in that process.

It is vitally important that we get legislation such as this right. We have seen this government rush many pieces of controversial legislation through this place and through the Senate without proper scrutiny or investigation. I fear that legislation such as the Work Choices bill, the Welfare to Work bill and the sedition provisions of the antiterrorist legislation will have implications as they progress and are implemented. Those implications will be felt by our communities. It is, then, important that this legislation is scrutinised fully in the Senate committee process. The key, as we have so often seen in our post September 11 world, is to strike a balance—a balance between our desire to protect the civil liberties of our people and our desire to keep our people safe.

There are several key provisions in this legislation to enact certain recommendations of the Blunn review. They deserve examination. Firstly, the legislation inserts a warrant regime for access to stored communications held by a telecommunications carrier. These stored communications are broadly defined to include electronic messages located on a computer, internet server or other equipment, whether read or unread, opened or unopened—messages such as emails, text messages, voice mail and all the attachments. Such stored communications are presently not covered by the Telecommunications Act, so they could be intercepted within the existing warrant regime without the need for a telecommunications interception warrant. However, this existing warrant regime has limitations and offers fewer protections than a telecommunications interception warrant should.

The legislation before us does propose a new warrants regime that will move stored communications from a general search warrant to tougher provisions similar to those already in the Telecommunications (Interception) Act for real-time communications. On balance, this appears to be a sensible amendment which recognises the change in telecommunications methods since the original interception act was drafted.

Schedule 3 of this legislation sets out to amend the named telecommunications interception warrant provisions to enable agencies to intercept communications to and from identified devices such as mobile phone handsets, personal and laptop computers, personal digital assistants and pagers. I note that interception on the basis of the device must only be authorised where the applicant agency has no practical method of identifying the telecommunications service used or likely to be used by the person of interest and that the interception of those services would not be possible.

Again, this provision appears to be necessary to keep up with the changing nature of communications and the way in which suspected criminals can use a large number of devices and services to disguise their activities. That can involve changing email services or mobile phone SIM cards to make it very difficult to track and link communications to the person of interest. As such, the provisions to allow for interception warrants to be issued in relation to specific telecommunications equipment appear to be useful ones.

The other major schedule in this legislation that I wish to discuss today is the schedule dealing with so-called B-party intercepts or third-party intercepts. Like the equipment based interception provisions that I referred to, this schedule has been introduced in an attempt to allow another way for enforcement agencies to intercept the communications of people of interest when they are having difficulty doing so through the usual channels of an interception warrant.

However, the problem many Australians would have with this schedule is that it does not only target people who are suspected of a crime or the equipment and services they use. B-party intercepts allow persons other than the person suspected of involvement in the crime to have their communications intercepted. These persons are referred to as the B-party. As long as this B-party is in contact with a suspected person, no matter what they are talking about or what information they are exchanging, that B-party person can then have their communications intercepted. Let us be clear what this means: a warrant can be obtained to bug the phone of a person who is not suspected of a crime. We should think very hard about the implications of this and the safeguards that are required before proceeding.

If party A, the person under investigation, is having their communications intercepted and they are discussing proposed crime with party B, then I have no problem with party B being brought into the scope of that investigation. What I do have a problem with is what the implications are of a B-party interception warrant then being issued for the second party. And, of course, that is the sort of safeguard that I would like to see.

The problem is that moving on to intercept the communications of party B then picks up a whole range of other communications with parties C, D, E and so on. These people may be relatives, friends, business associates or even lawyers or members of parliament—and, of course, we are used to a privilege situation with lawyers and clients and members of parliament and we are concerned that that should always continue. They may be completely innocent parties and perhaps would not even know of the existence of party A, the person under investigation for whom the original warrant would have been issued, yet they are having their personal conversations intercepted.

What if these people, parties C, D, E and so on, are not so innocent? If they are involved in the same crime, the crime for which the original warrant was sought for party A, then that is fine; it seems a fair cop. They can be investigated as part of that. However, if the agencies suspect that these people are involved in some different crime, those agencies should not be allowed to use that sort of intercepted information to pursue those people. They should indeed be required to make new investigations into that new alleged crime and seek appropriate warrants based on evidence coming out of those investigations but certainly not based on their interception information relating to the party-A warrant. If we do not protect against this sort of indirect collection of interceptions from people for whom we have no warrant, then the infringement of individual rights and liberties would become untenable.

My concern then is that appropriate silos or firewalls are maintained between the person for whom this B-party warrant has been issued and any other person with whom they communicate. While B-party interceptions are currently provided for under the existing act, the Blunn report notes that it has not been utilised by enforcement agencies because the provisions on this matter were seen as being open to several interpretations.

What this legislation does is make it explicit that B-party services may be intercepted. It also gives certain protections, such as stating that B-party interceptions must be a ‘last resort’ and must be a last-resort recourse for law enforcement agencies—though it is always that last resort and the person who has the power to issue that last resort facility that is concerning. Nonetheless, many in our community have been alarmed by this proposal. Civil liberties groups have warned that B-party interception powers tip the balance too far away from our citizens’ right to privacy and too far in favour of the ease and convenience of enforcement agencies in accessing their communications. This is a serious concern and one which the Blunn report noted. The report recommended that it be made ‘clear that B-party services may be intercepted in limited and controlled circumstances’. It is not clear from my reading of this legislation that the circumstances will be limited and controlled enough to warrant spying on innocent Australians.

I certainly hope that the Senate Legal and Constitutional Legislation Committee will have a very close look at this provision, because this is an area where we must get the balance just right. We must not allow ourselves to become a people ever afraid. We should not be afraid of picking up the telephone or sending someone a text message or an email for fear that communication will be traced or listened to. We should not have to check what we say and censor ourselves because we do not know who may be listening.

The fact that we are considering the matter of B-party interceptions raises some broader issues that I would like to touch on. Before I do, I would say that many of these legislative changes have been made with an antiterrorist intention and in an atmosphere and climate of new fears that pervade the world, including our country. It is important that people understand that the antiterrorist legislation itself widened powers so that there are already powers in our laws to deal with any interceptions if they are to do with a terrorist act or an imminent threat. The broader issues that I would like to touch on are important. The right to privacy is a right which is explicitly provided for under the International Covenant on Civil and Political Rights. The CCPR states:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

It also says:

Everyone has the right to the protection of the law against such interference or attacks.

Australia is a signatory to the CCPR and thus there is an obligation upon us to uphold the principles enshrined in it. However, the Howard government has repeatedly shown its disinterest in its international obligations. We have seen this in its treatment of asylum seekers—I note it is a year since Cornelia Rau was given her liberty and there has certainly been no payment of compensation at this stage; its treatment of working people, through its Work Choices legislation that has a new competitive edge which is about lowering people’s wages and conditions; and its keenness to go to war in Iraq, where we have been for three years, no matter what the United Nations thought at the time.

International treaties and institutions do not mean too much to this government. I cite the daily revelations regarding the Australian Wheat Board scandal that links the Howard government closer and closer to the deception and cheating. To this government such international obligations can be treated as irrelevant to Australia with the claim that they impinge on our sovereignty or independence. Perhaps it is time that we took a cue from every other Western nation and actually enshrined some of the rights embodied in such international treaties as the CCPR in our own nation’s law.

In this respect, I would like to draw the House’s attention to the good work being done by New Matilda, who have proposed a human rights act to do just that. New Matilda should be congratulated for raising public debate about how such an act would help to ensure that all of the legislation proposed by this parliament meets the basic principles of human rights. It would be interesting to see how the B-party provisions of this legislation would stand up when measured against such a human rights act. I believe that some of this government’s other legislation, such as that covering sedition and mandatory detention, would not pass muster under a basic human rights act.

I also believe that some of the statements made by the Prime Minister and others recently on Australian values would be more credible if they were backed by a concrete description of what our values are. In fact, there seems to be quite a deal of confusion between the Minister for Health and Ageing, Tony Abbott, the Treasurer, Mr Costello, and the Prime Minister himself on just what our values are. Apparently, it is a moveable feast. They are definitely ill defined by this government and are certainly subjective. A human rights act may be a way in which we can come to some kind of shared view on what our values actually are. It would spell them out in black and white, so that all Australians would have a clear indication of their rights and responsibilities. This is just a suggestion, which I believe is a good one, for ways in which we can use a human rights framework to help inform the community on these important matters. It would also help to inform us, as elected representatives, as we look at contentious legislation such as this which has the potential to infringe upon our human rights.

As I said earlier, there is a clear need to update the Telecommunications (Interception) Act to give our law enforcement agencies the powers they need to fight crime in this era of new and changing technology. I give full praise and commendation to the opposition for their efforts to bring better legislation into effect. However, any increase in these powers must be measured against the cost to the rights and civil liberties of our people, and we must be careful to get this balance right. There is no doubt that there are serious concerns about this legislation, and I look forward to a fuller examination of these concerns in the Senate committee process.

Daryl Melham (Banks, Australian Labor Party) Share this | Link to 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.

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

in reply—I thank the members who have contributed to the debate: the members for Gellibrand, Moncrieff, Denison, La Trobe, Newcastle, Kingsford Smith and Banks. I will deal with the individual comments as I deal with particular issues in this summing up. The Telecommunications (Interception) Amendment Bill 2006 illustrates the government’s commitment to ensuring that security and law enforcement agencies are equipped with appropriate powers to combat and prevent serious crime, including terrorism.

At the same time, the bill reflects the government’s consistent adherence to ensuring that there are appropriate privacy protections for users of the Australian telecommunications network. We believe that the measures that we are proposing are balanced and appropriate to the threats that we face and will enable important investigations to be adequately undertaken.

The new stored communications warrant regime implements the recommendations of Tony Blunn for an overarching regulatory framework to access communications such as emails, voice mail and SMS messages. Members have known for some time that this is a very important area for the law to move on, and this was the subject of consideration in the Senate on a number of occasions. Legislation to deal with the matter temporarily has been the subject of a sunset clause, which will run out in June this year.

This legislation is the considered response to those issues and will deal with those matters in a balanced way. Tony Blunn undertook the work to develop the proposal. The new regime strikes a careful balance, on the one hand creating a new prima facie protection for stored communications while on the other creating a defined regime to provide law enforcement agencies with appropriate access.

I note, for instance, the member for Denison’s concern that the proposed stored communications regime is not subject to the same restrictions as interception. There is a reason for this. It is because of the way in which these matters are accessed. You access them, essentially, at one single point in time, whereas the interception regime is a continuing monitoring over a longer period of time. The concerns, in our view, are misplaced.

Under the current laws, only those communications in their passage over the telecommunications systems are subject to the restrictions imposed by the interceptions regime. This bill has the effect of creating a new protection for those communications that are stored by a carrier which would otherwise be susceptible to access under the lower threshold applicable to search warrants.

This is an intermediate regime. Search warrants have a far lesser threshold to be satisfied. This is not going to the level that would apply in relation to a continuous monitoring, but to a higher threshold than that which applies for search warrants. That is the important point that needs to be understood. Given the differences, we think that the additional arrangements over and above those applicable to search warrants are the appropriate and balanced approach to dealing with these stored communications such as email and SMS messages.

For completeness, I note that the measures will not affect the existing arrangements in relation to the execution of search warrants on members and senators, as suggested by the member for Denison. I should also note that that was a matter that was the subject of comment by the member for Banks and the member for Kingsford Smith.

The bill will also make important amendments to the interception regime to assist agencies to counter measures adopted by persons suspected of serious criminal activity to evade telecommunications interception. People are very conscious today of interception—and I see this all the time in relation to the particular form of warrants that I supervise. There is a high level of awareness among people who may be targeted for investigations about the potential for scrutiny, and they take that into account. It is a situation in which the goalposts are moving.

I would like to think that telecommunications interception could be as effective as it has been in the past, but the concern we have is that, as a useful tool, it is being significantly degraded. These amendments are to allow agencies to respond in part to those changes: to allow them to intercept communications of an associate of a suspect or to intercept communications through a particular piece of equipment. These are designed to give further effect to the recommendations from Mr Blunn and his independent report. They respond to the ever-increasing sophistication in the use of communications technology by people engaged in serious criminal activity.

Interception under these new amendments will only be used as an investigative tool of last resort. I think that is the point that needs to be understood. These are additional controls. They are strict controls. These are only to be available for the investigation of the most serious offences; they are not tools that will be made available for the investigation of minor offences. I note the member for Denison’s comment that the use of B-party interception should be carefully limited. As I have said previously, this bill ensures that, where an agency believes it is necessary to intercept the communications of an associate of a suspect, the agency must demonstrate to a judge or an AAT member that the agency has exhausted all other practical methods of identifying communication services used by the suspect. That point is one I would make to the member for Banks. This is not a situation in which a warrant will be easily obtained; it will be a situation in which there is a very high threshold which has to be satisfied.

The idea that third parties’ conversations should not be intercepted fails to recognise that that happens now. If you, as a member of parliament, happen to ring a person who is a target of an investigation under the existing regime where a warrant has been issued, your conversation—which might be totally about matters relating to your parliamentary duties—could be the subject of interception. The point is that there is a requirement for those forms of conversations to be deleted and for the information not to be readily available for further investigations unrelated to the matters that are the subject of the investigation, unless they disclose an offence which itself carries a significant penalty. B-party interception is to be a tool of last resort, as the member for Newcastle said it should be.

The existing strong safeguards embedded in the interception regime will continue to apply. An interception warrant can only be granted to an agency where the judge or AAT member is satisfied that there are reasonable grounds for suspecting that a particular person is using or likely to use the telecommunications service and—I emphasise this—that information that would be obtained by the interception would be likely to assist in connection with the investigation by the agency of an offence which carries a penalty of seven years of penal servitude. The judge and the AAT member must have regard to the following additional factors: how much the privacy of any person would be likely to be interfered with by the interception; the gravity and the seriousness of the offences being investigated; how much the intercepted information would be likely to assist with the investigation by the agency of the offence and to what extent alternative methods of investigating the offence have been used or are available to the agency; how much the use of such methods would be likely to assist in the investigation by the agency of the offence; and how much the use of such methods would be likely to prejudice the investigation by the agency of the offence. All of these are requirements that have to be met. That is a very important aspect of these matters.

I was surprised at the suggestion from the honourable member for Kingsford Smith that a party that is the subject of a B-party warrant should receive a notice from the authorities of the intention to conduct the interception. I think that is an extraordinary suggestion, because the nature of telecommunications interception, which has long been part of our method of investigating serious criminal offences, is that inherently it is and always has been a covert investigatory tool. Consistent with its covert nature, the use of the interception is tightly regulated in the way that I have mentioned. But the idea that you go out and say to somebody, ‘Don’t use your phone when you’re talking to party-X because it’s the subject of a covert interception’ would totally destroy its efficacy as a tool, I suspect.

The measures in this bill will not only maintain but further strengthen the stringent restrictions on when an interception warrant can be issued to ensure that it only happens in connection with the investigation of very serious offences. The existing restrictions on the use of any intercepted material continue to apply and will, as currently required, have independent oversight and annual reporting to parliament.

I also note the reluctant concession of the member for Denison that B-party interception provisions are necessary, but the member is concerned with the use of intercepted material which will be obtained by intercepting the B-party. If intercepted material reveals information regarding the commission of an offence that was not initially under investigation, that information may be used by the interception agency, providing it meets a three-year penal servitude threshold. This is entirely consistent with the existing arrangements within the interception regime, which enable the use of intercepted material in relation to any criminal offence which meets that three-year threshold. These arrangements ensure that law enforcement agencies and security agencies are not required to turn a blind eye to criminality where the interception warrant initially relates to a different offence. To suggest otherwise would seriously impede the ability of the agencies to utilise this important investigatory tool appropriately and effectively.

In relation to the final comments made by the member for Banks, he did not quote me inappropriately from my second reading speech. But I would say that, in Australia, we have an effective system of monitoring, which includes a robust system of keeping statistics. That there are statistics from which you are able to undertake your evaluation as to the movements that may or may not be occurring is because we do just that. I think the gentleman concerned, Mr O’Gorman in Queensland, argues that your phone is more likely to be tapped in Australia than it is in the United States, and therefore we are doing something inherently wrong.

The point I make is that our statistics are robust; their statistics are not. The argument on the basis of comparing statistics is a flawed argument. If you were to take his formula and use the German classifications, for instance—I have the figures here: the population of Germany is 82 million—you would find that in terms of intercepts one in every 2,841 persons or phones is tapped in Germany. The population in Australia is 20 million. The figure is one in 6,634 phones or persons are tapped. You could argue that somebody is 42 per cent more likely to have their phone tapped in Germany than in Australia, and therefore our figures are comparatively low. That is the nature of the argument. I do not know about the nature of their statistics and what they recall. I do not know whether it is a totally valid comparison, but I would certainly argue that we keep very robust statistics. I do not think we are particularly out of the ordinary in terms of investigating terrorism offences, serious criminal offences and using the appropriate tools to do just that.

The bill reflects a very considered effort by the government to strike an appropriate balance in dealing with the very significant efforts that are undertaken to avoid what are known to be investigatory methods, which include telephone interceptions. With the change in technology that has occurred—particularly in relation to email, SMS, stored communications and the like—they are matters that we have to effectively address, and this legislation provides that mechanism. On that basis, I commend the bill to the House and look forward to the Senate dealing with the matter, before the sunset clause expires.

Question agreed to.

Bill read a second time.