House debates
Thursday, 30 March 2006
Telecommunications (Interception) Amendment Bill 2006
Consideration of Senate Message
Bill returned from the Senate with amendments.
Ordered that the amendments be considered immediately.
Senate’s amendments—
(1) Clause 2, page 2 (table item 2), omit the table item, substitute:
2. Schedules 1 to 3 | A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. |
(2) Schedule 1, item 1, page 4 (lines 5 to 13), omit the item, substitute:
1 Subsection 5(1)
Insert:
stored communication means a communication that:
(a) is not passing over a telecommunications system; and
(b) is held on equipment that is operated by, and is in the possession of, a carrier; and
(c) cannot be accessed on that equipment, by a person who is not a party to the communication, without the assistance of an employee of the carrier.
(3) Schedule 1, item 2, page 4 (line 29) to page 5 (line 6), omit paragraph 5E(1)(c), substitute:
(c) could, if established, render the person committing the contravention liable:
(i) if the contravention were committed by an individual—to pay a pecuniary penalty of 180 penalty units or more, or to pay an amount that is the monetary equivalent of 180 penalty units or more; or
(ii) if the contravention cannot be committed by an individual—to pay a pecuniary penalty of 900 penalty units or more, or to pay an amount that is the monetary equivalent of 900 penalty units or more.
(4) Schedule 1, item 2, page 5 (lines 20 to 25), omit section 5F, substitute:
5F When a communication is passing over a telecommunications system
(1) For the purposes of this Act, a communication:
(a) is taken to start passing over a telecommunications system when it is sent or transmitted by the person sending the communication; and
(b) is taken to continue to pass over the system until it becomes accessible to the intended recipient of the communication.
(2) However, if a communication is sent from an address on a computer network operated by or on behalf of the Australian Federal Police, it is taken not to start passing over a telecommunications system, for the purposes of this Act, until it is no longer under the control of any of the following:
(a) any AFP employee responsible for operating, protecting and maintaining the network;
(b) any AFP employee responsible for enforcement of the professional standards of the Australian Federal Police.
(3) Subsection (2) ceases to have effect at the end of the period of 2 years starting at the commencement of this section.
(5) Schedule 1, item 2, page 5 (line 27), before “For the purposes”, insert “(1)”.
(6) Schedule 1, item 2, page 6 (after line 2), at the end of section 5G, add:
(2) In addition to the person who is the intended recipient of a communication under subsection (1), if a communication is addressed to a person at an address on a computer network operated by or on behalf of the Australian Federal Police, each of the following is also an intended recipient of the communication for the purposes of this Act:
(a) any AFP employee responsible for operating, protecting and maintaining the network;
(b) any AFP employee responsible for enforcement of the professional standards of the Australian Federal Police.
(3) Subsection (2) ceases to have effect at the end of the period of 2 years starting at the commencement of this section.
(4) If subsection (2) applies to a communication, a reference in this Act (other than in this section) to the intended recipient of the communication is taken to be a reference to an intended recipient of the communication.
(7) Schedule 1, item 9, page 9 (lines 12 and 13), omit paragraph 108(1)(b), substitute:
(b) the person does so with the knowledge of neither of the following:
(i) the intended recipient of the stored communication;
(ii) the person who sent the stored communication.
(8) Schedule 1, item 9, page 9 (after line 18), after subsection 108(1), insert:
(1A) Without limiting paragraph (1)(b), a person is taken for the purposes of that paragraph to have knowledge of an act referred to in paragraph (1)(a) if written notice of an intention to do the act is given to the person.
Note: For giving notice, see section 28A of the Acts Interpretation Act 1901.
(9) Schedule 1, item 9, page 10 (line 27), omit “device.”, substitute “device; or”.
(10) Schedule 1, item 9, page 10 (after line 27), after paragraph 108(2)(g), add:
(h) accessing a stored communication by an officer or staff member of the Australian Communications and Media Authority engaged in duties relating to enforcement of the Spam Act 2003.
(11) Schedule 1, item 9, page 26 (lines 17 to 25), omit section 138, substitute:
138 Employee of carrier may communicate information to enforcement agency
(1) An employee of a carrier may, for a purpose or purposes connected with the investigation by the Australian Communications and Media Authority of a serious contravention or with the performance of its functions relating to enforcement of the Spam Act 2003, and for no other purpose, communicate to an officer or staff member of the authority the following:
(a) lawfully accessed information other than foreign intelligence information;
(b) stored communications warrant information.
(2) An employee of a carrier may, for a purpose or purposes connected with the investigation by any other enforcement agency of a serious contravention, and for no other purpose, communicate to an officer or staff member of the agency the following:
(a) lawfully accessed information other than foreign intelligence information;
(b) stored communications warrant information.
(12) Schedule 1, item 9, page 27 (lines 19 to 26), omit paragraph 139(3)(c), substitute:
(c) could, if established, render the person committing the contravention liable:
(i) if the contravention were committed by an individual—to pay a pecuniary penalty of 60 penalty units or more, or to pay an amount that is the monetary equivalent of 60 penalty units or more; or
(ii) if the contravention cannot be committed by an individual—to pay a pecuniary penalty of 300 penalty units or more, or to pay an amount that is the monetary equivalent of 300 penalty units or more.
(13) Schedule 1, item 19, page 45 (line 14), omit “or 3-2”.
(14) Schedule 1, page 45 (after line 20), after item 20, insert:
Intelligence Services Act 2001
20A Paragraph 14(2A)(a)
Omit “Part III of the Telecommunications (Interception) Act 1979”, substitute “Part 2-2 of the Telecommunications (Interception and Access) Act 1979”.
(15) Schedule 1, page 46 (after line 9), after item 24, insert:
Telecommunications Act 1997
24A Section 5
Omit “Telecommunications (Interception) Act 1979”, substitute “Telecommunications (Interception and Access) Act 1979”.
24B Subsection 313(7)
Omit “interception services”, substitute “interception or access services”.
24C Subsection 313(7)
Omit “under the Telecommunications (Interception) Act 1979”, substitute “or a stored communications warrant under the Telecommunications (Interception and Access) Act 1979”.
24D Subsection 313(8)
Omit “interception services”, substitute “interception or access services”.
24E Subsection 313(8)
After “intercepted”, insert “or accessed”.
24F Subsection 324(2)
Omit “Telecommunications (Interception) Act 1979”, substitute “Telecommunications (Interception and Access) Act 1979”.
24G Section 332K (note)
Omit “Telecommunications (Interception) Act 1979”, substitute “Telecommunications (Interception and Access) Act 1979”.
(16) Schedule 2, item 7, page 63 (lines 8 and 9), omit subparagraph 46(1)(d)(ii), substitute:
(ii) another person is involved with whom the particular person is likely to communicate using the service; and
(17) Schedule 2, page 63 (after line 30), at the end of the Schedule, add:
11 After paragraph 100(1)(ec)
Insert:
(ed) in relation to applications of a kind referred to in paragraph (a), (b), (c), (d) or (e), the relevant statistics about applications of that kind that relate to warrants in relation to which subparagraph 46(1)(d)(ii) would apply if the warrants were issued; and
(ee) how many Part 2-5 warrants issued during that year on application made by the agency or authority were warrants in relation to which subparagraph 46(1)(d)(ii) applied; and
(ef) how many Part 2-5 warrants renewed during that year on application made by the agency or authority were warrants in relation to which subparagraph 46(1)(d)(ii) applied; and
12 After paragraph 100(2)(ec)
Insert:
(ed) in relation to applications of a kind referred to in paragraph (a), (b), (c), (d) or (e), the relevant statistics about applications of that kind that relate to warrants in relation to which subparagraph 46(1)(d)(ii) would apply if the warrants were issued; and
(ee) how many Part 2-5 warrants issued during that year were warrants in relation to which subparagraph 46(1)(d)(ii) applied; and
(ef) how many Part 2-5 warrants renewed during that year were warrants in relation to which subparagraph 46(1)(d)(ii) applied; and
13 At the end of paragraphs 101(1)(a), (b) and (c)
Add “and”.
14 After paragraph 101(1)(d)
Insert:
(da) in relation to periods of a kind referred to in paragraph (a), (b), (c) or (d), the averages of the periods of that kind that relate to warrants in relation to which subparagraph 46(1)(d)(ii) applied; and
15 At the end of paragraphs 101(2)(a), (b) and (c)
Add “and”.
16 After paragraph 101(2)(d)
Insert:
(da) in relation to periods of a kind referred to in paragraph (a), (b), (c) or (d), the averages of the periods of that kind that relate to warrants in relation to which subparagraph 46(1)(d)(ii) applied; and
(18) Schedule 5, item 35, page 85 (lines 1 to 5), omit the item, substitute:
35 Section 82
Repeal the section.
(19) Schedule 5, page 85 (after line 5), at the end of the Schedule, add:
36 At the end of paragraph 86(1)(a)
Add “and”.
37 After paragraph 86(1)(b)
Insert:
and (ba) is entitled to have full and free access at all reasonable times to the General Register and the Special Register; and
38 Paragraph 86(1)(c)
After “agency”, insert “or the General Register or Special Register”.
39 At the end of section 86
Add:
(3) The Ombudsman’s powers include doing anything incidental or conducive to the performance of any of the Ombudsman’s functions under this Part.
4:02 pm
Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source
I move:
That the amendments be agreed to.
Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Link to this | Hansard source
In the other place, the government voted down Labor’s sensible suggested amendments and protections to the Telecommunications (Interception) Amendment Bill 2006, which were going to provide better protection for the B-party interceptions that are proposed under this regime. Labor recognises that the bill taken as a whole is an advance for privacy and for the scrutiny that will apply for these new interceptions. However, we were concerned that the B-party content of this bill was not time critical and not subject to the stored communication sunset clause which has caused this bill to be dealt with in great haste. In those circumstances, it seems to us that it would have been possible for the government to agree to our proposal to delay consideration of schedule 2, but this proposal from Labor has been refused.
Even when the debate on this matter was on in the other place, we were concerned that the government had not to date brought forward its legislation to establish a commission for law enforcement integrity. That legislation has now been introduced into the House after two years of the government promising that it would deliver it. On a number of occasions when we were required and requested to support this sort of legislation, Labor noted that we were concerned that the government was going to both broaden its powers and provide new powers to a number of agencies without this integrity commission being in place. We welcome the introduction of this legislation by the government. It is detailed legislation and we will be looking more closely to ensure that the oversight body does have the powers that it needs, including any relevant powers that it needs for overseeing the new TI regime and making sure that it is safe and effective from an anticorruption point of view.
As I say, the Labor Party has been concerned that the B-party interception provisions were not time critical, were not covered by the oversight of a federal anticorruption commission, were not covered by the reasonable safeguards that were recommended by an all-party Senate committee and were not covered by the safeguard amendments that Labor developed as a result of the committee recommendations and that it put forward in the other place. We are very disappointed that the government has chosen not to accept Labor’s proposals. Labor will, in government, pursue the safeguards that have been recommended by the Senate Legal and Constitutional Legislation committee and that were moved as amendments in the other place.
At least Labor took the time to develop the amendments, which were based on those committee recommendations. We did this in less than 24 hours with the limited resources that are available to the opposition. The Attorney-General failed to even bother to develop amendments of his own to cover these matters, despite having the resources of an entire department at his disposal. I well know this, because, even in speaking on relatively minor legislation in the Main Committee, I have on a number of occasions in recent days counted seven or eight officials. But when it comes to something that is as significant as this, where detailed recommendations are made by a Senate committee, the government says that it does not have time to consider those properly and move amendments that would take account of those unanimous recommendations.
Instead of dealing with those recommendations while the bill is at hand, the government has given some sort of vague commitment that it will look at these in the future. But really, Minister, there is no excuse for having taken this amount of time. You could have looked at those recommendations when they were made on Monday. The way this chamber works to deal with matters expeditiously would have enabled the minister to move appropriate amendments, but he has taken a lazy approach and not bothered to do that. This reflects the contempt of this government, and particularly this minister, for the process in trying to get urgent legislation through. The result comes at a cost and there is a compromise: the government is not getting the best sort of legislation through, because it could improve it. It also shows a serious contempt for the minister’s own backbench members who wrote the recommendations of the Senate committee report and are after all trying to represent the Australian community and put forward the best piece of legislation possible. It is a lazy approach by the minister. He should motivate himself to actually look at the amendments that we moved in the other place and that would have fixed this weak piece of legislation. We urge the government to do so at the earliest opportunity. (Time expired)
4:07 pm
Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source
I thought we were going to have a pleasant afternoon, but the honourable member for Gellibrand has seen fit to personalise the comments that she has made in a way that I think reflects a fundamental misunderstanding of the processes of the House as well as the processes of the government in considering legislation.
Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Link to this | Hansard source
Ms Roxon interjecting
Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source
Our party room likes to be informed. It is informed by a backbench committee consideration, and they like to have the material before them as they do consider bills. I can assure the opposition that the consideration that is given is substantial and effects improvements to legislation quite frequently. That is the task that they like to undertake.
The Senate committee took some weeks. They would say that it was an expeditious consideration of this bill. But it was some weeks, and the committee report was tabled on Monday. I want to thank the Senate Legal and Constitutional Legislation Committee for their consideration and report. I have read it with interest. A number of amendments have been made to the Telecommunications (Interception) Amendment Bill 2006 in recognition of issues that were raised by our colleagues. Those government amendments that were moved took into account matters that were raised before the committee where we had to divine whether or not they would make recommendations. Many of the amendments that we proposed and that have been accepted by the Senate reflected that consideration.
The government has illustrated its commitment in this bill to ensure that security and law enforcement agencies are equipped with appropriate powers to combat and prevent serious crime, including terrorism. Specifically, the bill updates these powers to keep pace with technological developments that assist the suspects evading investigation. This bill represents the most substantial reforms to the interception regime since its inception. The bill continues to reflect the government’s consistent efforts to ensure that there are appropriate privacy provisions and protections for users of communications and that these protections are maintained alongside enhanced access powers for law enforcement and security agencies.
The implementation of the recommendations of the Blunn report on the regulation of access to communications provides greater certainty and clarity to those agencies, to telecommunication industry participants and to users of telecommunications systems. The new stored communication warrant regime does strike a careful balance—on the one hand creating a new prima facie protection for stored communications whilst on the other hand creating a defined regime to provide law enforcement agencies with appropriate access.
The bill also makes important amendments to the interception regime to assist agencies to counter measures adopted by persons suspected of serious criminal activity in evading interception. Interception under the new B-party interception provisions will only be used as an investigatory tool of last resort, it will be subject to strict controls and it will only be available for investigation of the most serious crimes. Strong safeguards which currently underpin the interception regime will continue to apply. These include restrictions on the use of any intercepted material as well as current requirements for independent oversight and annual reporting to parliament.
I conclude by saying that this bill is to deal with matters that would otherwise be the subject of a sunset clause dealing with stored communications. We did not want to see those important measures come to an end, and that is why the legislation has been progressed not in haste but to ensure that these issues have been dealt with before that sunset clause comes into effect. The government will continue to consider in detail the committee report and the recommendations as part of its ongoing commitment to ensuring the regime achieves an appropriate balance. If there are further amendments that are thought to be appropriate following the consideration of the committee report, we will propose further amendments in the spring session of parliament. That is as I think it should be. I commend the amendments to the House. I think the urgency is apparent.
4:12 pm
Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Link to this | Hansard source
I just have to comment briefly on the extraordinary comments that the Attorney-General has just made, which essentially ask this House to accept the nonsense that the government cannot move to make improvements to their own piece of legislation following their own backbench committee, along with members of the Labor Party in the Senate making recommendations, because they have not been through his party room process. It is ridiculous to come into the parliament, the law-making body of this country, and say that improvements cannot be made to a quite radical new regime that is being set up, because the Attorney-General has not had time to take it through his party room.
Of course all of us in this place understand that processes need to be gone through. But we are being asked to rush through a piece of legislation that will have a significant impact—and that is what the B-party intercept in schedule 2 of the Telecommunications (Interception) Amendment Bill 2006 will have; it will have a significant impact by changing the current regime as it applies—without improvements that have been recommended by a unanimous Senate committee. The Attorney-General is saying that the government cannot move to make improvements because he has not asked his backbench.
I could not let those comments go without making the comment that we regard the parliament as the law-making body here, not his backbench committee or the party room. Those processes can be gone through and should be gone through. It is not beyond the wit of the minister to be able to organise one of those meetings if he had any particular desire to do so. Again, it is a complete nonsense to suggest that they have not had time to draft these sorts of amendments. You have incredibly good staff in the Clerk’s office both in the House and in the Senate who are able to draft amendments all the time, you have OPC and you have your own departments. It is really just a lack of will on the part of the government to improve this system.
I think this is the third or fourth time now that the minister has said, ‘I am aware that this legislation could be better, but I call on this House to pass the legislation and we will improve it in the future.’ We saw that with the legislation on sedition. We have seen it with a number of other pieces of legislation in the past few months, all under this Attorney’s responsibility. We are being asked again today to accept a bill that could be improved were the minister to take the time to do it. We do accept the other changes. We accept that the latest amendments that are being moved are an improvement. But there are further improvements that could have been made if only the Attorney had taken the time to do that himself or instruct his many staff to do it for him.
4:15 pm
Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source
Not only does the honourable member for Gellibrand like to personalise her remarks but she does not like to be proven wrong and seeks to justify the unjustifiable position.
Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Link to this | Hansard source
It’s not unjustified.
Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source
It is.
Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Link to this | Hansard source
It’s a unanimous set of recommendations from a Senate committee.
Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source
It is a committee report in which there are recommendations that need to be the subject of detailed consideration. Of course, you might be able to draft amendments to reflect what the committee has decided—if you are not prepared to go behind and look at the policy implications of the measures that are being proposed and to involve all of those who are likely to be affected.
Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Link to this | Hansard source
Ms Roxon interjecting
Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source
I suspect the honourable member for Gellibrand will never be in a position to consider these matters in government, with the way they perform. But if I were here to watch her, were she ever to get there—
Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Link to this | Hansard source
Ms Roxon interjecting
Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source
Yes, I agree that I would have to be very old—I know it is going to be a long time! But the point I make is that I am sure, in that situation, there would be examples in which she would be placed in wanting to effect very important measures that ought to be on the statute book so that the impact of a sunset clause, which would wipe out our capacity to deal with stored communications, were avoided. This legislation—
Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Link to this | Hansard source
Schedule 2 doesn’t deal with stored communications. You’re misleading the House.
Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source
This legislation deals with stored communications.
Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Link to this | Hansard source
Ms Roxon interjecting
Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source
Order! The procedures of the House are that the member for Gellibrand can seek the call and get five minutes; otherwise, I ask her to restrain herself.
Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source
To suggest when I said that that I was misleading the House, and then to accept the correction and substitute some other words, I think reflects just that. The point I make is that there is urgency associated with this legislation. It is in a form that was acceptable to government members. My goodwill, as evidenced in a desire to further consider matters that have been raised in a bipartisan way in the Senate, should not be made light of in the way the member for Gellibrand has. It is only more likely to serve to encourage people to become more intransigent.
Question agreed to.