Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

I rise to speak on the Telecommunications (Interception) Amendment Bill 2006. The bill currently before us introduces a range of amendments to the Telecommunications (Interception) Act and the bill aims in part to implement the recommendations arising from the Blunn review into the telecommunications interception regime. Perhaps it is worth providing a recent snapshot of how it got to this place. I might make some preliminary remarks on the history of the bill for the benefit of the record.

Since 2002, the parliament has struggled four times with the issue of stored communication—that is, emails and the like. The contentious provisions in the Telecommunications Interception Legislation Amendment Bill 2002 were withdrawn after the Senate legal and constitutional committee recommended against their inclusion. In 2004, some two years later, the contentious provisions of the 2002 bill made a return, and during the committee hearing on this bill it became apparent that the Australian Federal Police were using, surprisingly, section 3L of the Crimes Act for warrants to intercept stored communication material from internet service providers—or ISPs. Such was the difference of opinion between the AFP and the Attorney-General’s Department on this matter that the committee recommended the stored communication regime be deferred until there was some ‘joint ticket’ from the government in respect of how stored communications would be dealt with.

The final result was that the committee recommended that an independent review of the act occur and imposed a sunset clause on the AFP use of general warrants to access stored communication. The original 2004 bill was thus not pursued by the government at that time. But, subsequently, the government came back to parliament with another 2004 bill that implemented in part the committee’s recommendation—that is, that the status quo would remain whilst a review took place.

The 12 months imposed by the sunset clause was long enough for Mr Anthony Blunn AO to conclude his review but not long enough for the government to finalise the subsequent legislation. A further six-month extension was granted by the Telecommunications (Interception) Amendment Bill 2005, which this parliament agreed to. That extension expires in June of this year, and clearly that is why we are having the debate now. The time line is that this bill, as the government claims, needs to be put through parliament this week. There is only the May sitting before we end up in June, when the present sunset clause would kick in. Therefore, at present we have a temporary solution to the issue of stored communication and, perhaps, the status quo—the unsatisfactory status quo regarding the difference of opinion between the AFP and the Attorney-General.

From Labor’s point of view, the present situation of dealing with such communication is unsatisfactory. Email and SMS messages are able to be intercepted by the general Crimes Act warrant under section 3L. Labor strongly believes in tougher safeguards than are presently available. As it stands, we effectively have a stopgap measure that will fall over when this clause expires in mid-June, and clearly this parliament does need to act on this issue before that is reached.

Turning to the Blunn review, it provided a review of not only the telecommunications interception regime but also the range of circumstances around it. The bill before us today therefore seeks to implement a number of the recommendations of the Blunn review—but not all of them, because this bill does not represent the total sum of the reform recommended by Blunn. Clearly, this will be an issue that will need to be revisited in the future, and perhaps the not too distant future. What is before us today is, it seems, as much as the Attorney-General could put together, given the deadline to have this bill passed, assented to and proclaimed before the sunset provision kicks in.

Blunn’s main findings included:

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;

access to telecommunications data is, and for the foreseeable future will remain, fundamental to effective security and law enforcement;

That was the prime starting point when Labor considered this bill—privacy and law enforcement access.

One of the more problematic areas, perhaps the most problematic in terms of the comments on this bill, is B-party intercepts—that is, an intercept of an innocent party or a nonsuspect who is in regular communication with a person of interest. It seems that B-party intercepts are permitted under the current law. It seems their validity under the existing Telecommunications (Interception) Act was established in the full Federal Court decision of John Flanagan v Commissioner of the Australian Federal Police. There are of course arguments as to whether that might be good or bad law or whether this case might be followed by another full Federal Court or a High Court decision at some later point. However, until that happens, it remains conjecture, and I am not going to give my view on that. Although B-party interceptions have not been used since the Flanagan case in 1995, that has been a matter of policy and not of law. Should the government of the day change that policy, it seems it could rely on that decision.

The independent reviewer of B-party communications, Mr Anthony Blunn, recommended:

... the Interception Act be amended to make it clear that B-Party services may be intercepted in limited and controlled circumstances.

That is what this bill seeks to do and, in making that point, it also ensures the point of last resort to law enforcement agencies for the use of B-party intercepts. This intention must be made clear to the courts, the public and law enforcement agencies, including ASIO. As a responsible party, Labor will take this opportunity to limit the use of B-party intercepts. We have to ensure that the issue is carefully examined. It has had the opportunity of going through the legal and constitutional committee, and a number of recommendations have been made from that.

We will also take the opportunity in committee stage—which it seems will be tonight—to ensure that there are sufficient safeguards to give effect to the Blunn review recommendation that B-party intercepts be utilised in limited and controlled circumstances. Labor is not satisfied that B-party intercepts are currently only used safely and responsibly with the appropriate privacy controls and safeguards. It is important that amendments are moved to ensure that they are used safely and responsibly with the appropriate privacy controls and safeguards, and Labor will ensure this. The bill also contains technical measures, set out in schedules 4 to 6, that will amalgamate two different classes of offences, remove a redundant accountability provision and provide some housekeeping measures ensuring that the act is up to date. Labor generally supports the bill because of its strong emphasis on protecting privacy and the important practical assistance it will give to our law enforcement agencies.

I will now turn to each schedule. The first schedule in the bill before us deals with stored communication—as I said earlier, communications like emails and SMSs. The issue of stored communication was addressed in detail by the Blunn review, which made a number of findings on this matter. Firstly, it recommended that the distinction between real-time and stored communications be maintained. However, despite calling for the retention of this distinction, it also found that the act as it is presently structured is not an appropriate vehicle for accessing communication other than real-time communications and that the provisions governing access to stored communication are inadequate and inappropriate, and Labor certainly agrees with that sentiment. Therefore the review recommended that access to stored communications continue to be authorised by a search warrant and that those warrants be required to meet minimum prescribed standards.

Therefore the bill before us today sets up a new warrant regime for intercepting stored communication. The bill will move the provisions from a general search warrant and implement tougher provisions similar to those for real-time communications. In effect, the bill will toughen privacy protections, making it harder to get a warrant. This schedule introduces a new regime for access to stored communication. This includes a general prohibition on access to stored communications, the regime for access to stored communications by law enforcement agencies, the process and regime for issuing, executing and revoking stored communication warrants, provisions of technical assistance to a law enforcement agency by staff or a carrier, a regime of evidentiary certificates by carriers and law enforcement agencies and an offence to criminalise unauthorised use or communication of accessed information or stored warrant information. It also includes a regime of permitted dealings with accessed information, admissibility of evidence, destruction of records unlikely to be used for the purposes of the investigation, the regime for keeping of records, including access to same by the Ombudsman and, more importantly, the regime for reporting to the minister and parliament about these matters and, of course, civil remedies.

The new regime, which will be brought in by the bill, generally acts to apply the same protections afforded to telecommunications to stored communications. So the first schedule of the bill not only acts to clarify the status of access to stored communication—which, it seems, has bedevilled this department for some time—but at the same time ensures that there are sufficiently tough privacy provisions that have to be met and maintained before you can obtain a stored communication warrant.

The second schedule in this bill clarifies the position of the act on B-party intercepts. As I said, a B-party intercept occurs when a law enforcement agency seeks to monitor person A for criminal activity. Now, say that a person is in regular contact with another party, a B party, who is not the subject of an investigation. Under the present law it is permissible to obtain a warrant to subject the second person, the B person, to an interception. It is not permissible, at least as far as policy is concerned, to intercept in order to obtain information regarding person A. But, of course, B-party intercepts effectively then target nonsuspects. We keep coming back to the issue that is of concern—to ensure that there is an appropriate balance struck between the privacy of individuals and the use of B-party intercepts.

Perhaps it is a good time to thank not only the members of the committee but also the secretariat for the work in such a short time to provide a report, given that there were significant constraints placed upon us by this government which I will complain about. If you look at the position that the government put the committee in, you will see that it gave not only the committee but also submitters a very limited time to provide submissions. I will also take the opportunity to say on record that I appreciate the submissions that were made in such a limited time. They were invaluable to the committee for coming to a conclusion and making recommendations. Again, the time provided for the committee to finalise its report to parliament was very limited. It was only reported on Monday. It is now Tuesday. I think dealing with the bill in such a short time also means the ability of this government to digest the recommendations is questionable.

Certainly the government will have to be able to tell this parliament that they have looked at all those recommendations in the time available, considered them and ensured that the bill meets those recommendations—and, if it does not, why it does not. They will also have to provide the opposition with sufficient time to be able to meet those recommendations by way of amendments if the government fail to adopt any of those recommendations. I can leave that to the committee stage. But it is worth indicating that we have been working under time constraints that have been imposed by this government and which I think are unreasonable and, I have to say, create the look that the government are seeking to move in haste when leaving more time might create a much better response.

The committee really summed it up when it said that it is important, if this bill—through B-party intercepts—seeks to override people’s rights to privacy, that it does so no more than is necessary. The law enforcement agencies have submitted that there is a need for B-party intercepts in limited and controlled circumstances and the Blunn review highlighted that they should only be used in limited and controlled circumstances.

The key question therefore is the extent to which this bill provides a framework of controls over the proposed intercepts that balances privacy with effective law enforcement. The committee went on to identify a range of issues that would need to be looked at: the controls on the dissemination of information, the implications for the protection of privileged communications, and the reporting and accountability requirements. It came up with substantive recommendations to improve the position of this bill to ensure that it address those issues.

The third area in which this bill imposes changes is equipment based interception, which is dealt with in schedule 3. This is arguably a technical change to allow law enforcement agencies to apply for warrants for communications from a specific device rather than communications from a person. What happens, as mentioned in the explanatory memoranda, is that a person of interest will buy a mobile phone and use potentially any number of SIM cards, at low cost or no cost, which they then switch through their phone. Naturally this makes it very difficult for a law enforcement agency to identify and intercept communications belonging to that person based on a SIM card. The person might also use multiple handsets. The amendments would, as I earlier stated, allow for a law enforcement agency to target the phone and intercept communications arising out of that phone or other device. This would serve to make it less practical and less economic for a person of interest to evade interception through their exploitation of technology. It would also enhance law enforcement’s chances of interception.

The three schedules I have mentioned are the main schedules to the bill. There are another three schedules which are designed to enact largely technical changes to the bill. Schedule 4 removes the distinction between class 1 and class 2 offences. Previously the act divided offences into these two classes and required only class 2 offences to be subject to privacy considerations by the issuing authority. However, the Blunn review questioned this distinction, finding that it produced no meaningful difference in terms of outcomes, and recommended its removal. The current bill accomplishes this, abolishing the two definitions and placing both of them under a new definition of ‘serious offence’. Both types of offences are now subject to privacy considerations. Essentially this enhances the privacy provisions of this bill. Under the previous regime, only class 2 offences were subject to privacy considerations. Under the regime presented in this bill, all requests for warrants of telecommunications interceptions will be subject to these considerations. Again, Labor will support these amendments, subject to any recommendations arising out of the committee process.

Schedule 5 operates to remove the Telecommunications Interception Remote Authority Connection from the act. The Blunn review found that the TIRAC regime was costly but had  a very low rate of detecting warrant errors. The review recommended that the powers of TIRAC be removed to the Attorney-General’s Department. Schedule 6 of the bill introduces a number of technical amendments to the act and these are largely housekeeping.

In conclusion: the bill before us is a necessary update of the somewhat antiquated legislation that currently covers telecommunications interceptions. Significantly, the bill will provide a new regime for the interception of stored communication. (Time expired)