Natasha Stott Despoja (SA, Australian Democrats) Share this | Hansard source

We are getting there. I thought mine had been circulated, so I apologise to anyone if indeed they have not been. I do think we should do each other the courtesy in this place of allowing each other sufficient time to at least read each other’s amendments. I acknowledge the government may not support ours. Having said that, once again I want to put on record that, even when we disagree on policy, we should commit to some protocol and conventions and process in this place that do justice to this parliament and to the house of review. Once again tonight, our role of scrutinising and analysing law in a timely fashion and a considerable way has been abrogated. I am very upset about that. I hope people will see our amendments over dinner and consider them in detail.

(Quorum formed)

This bill is obviously so important and urgent that I thought we would have had a quorum present anyway. I want to again put on record that amendments from the Labor Party and the Australian Democrats have yet to be circulated. We have been working madly over the last two days to get the amendments drafted and circulated and to hopefully give people enough time to respond to those amendments, but we have been focusing on the Family Law Amendment (Shared Parental Responsibility) Bill 2006 for the last 24 hours. Given that that has been pulled, this bill has come up and, although we are in the second reading debate, I implore the government to consider making the committee stage later. But, then again, maybe there is no willingness to even consider the amendments, including those that have arisen out of the Senate committee report.

This bill introduces a stored communications warrant. The regime allows enforcement agencies as well as Commonwealth bodies, such as the Australian Taxation Office, ASIC and Australian Customs, and similar state agencies to have access to stored communications. A stored communication is defined as a communication which is passed over a telecommunications system, is held on equipment operated by a telecommunications carrier at their premises and must be accessible to an intended recipient. The threshold for a stored communications warrant is three years, unlike an interceptions warrant, which is seven years. Stored communications warrants have lower storage, inspection and reporting requirements as compared with interception warrants.

This bill allows for a B-party, or a non-suspect third party, to have their telecommunications services intercepted in order to obtain information about a third party. In addition to B-party warrants and stored communications warrants, this bill introduces the concept of an equipment based warrant. This is where the warrant applies to an individual piece of telecommunications equipment as opposed to a person.

While recognising the importance of the Blunn report’s recommendation that consolidating the warrant regime will make the Telecommunications (Interception) Act more efficient, I and many others are dismayed by the potential impact of this legislation on privacy rights of Australians. We are concerned about the extent to which privacy rights can be affected by this bill. This bill in some cases strips away the privacy rights of some people. Specifically, it strips away the right of some Australians to have their information communicated in confidence. The low threshold that has to be met in order to obtain a stored communications warrant, or the potential that surveilled persons not even suspected of any wrongdoing may have their entire conversation with another nonsuspect intercepted, is an unacceptable invasion.

I accept that, in order to have a secure and safe society, we need to equip our enforcement agencies with appropriate tools. The stored communications warrant and the B-party warrant regimes, as outlined in this bill, are not appropriate tools to give to our enforcement agencies. The operation of these warrants and this regime does not strike a proportioned balance between privacy rights and efficiency in fighting crime.

I note that during the Senate inquiry into this legislation the Attorney-General’s Department submitted to the committee that the difference in the threshold required to obtain a stored communications warrant is significantly lower than that required to obtain an interception warrant because the information obtained under a stored communications warrant is ‘something that definitely involves more consideration of the expression’. The premise that more consideration or thought may be put into an SMS, an email message or a message left on voicemail in comparison to a telephone conversation, in this day and age, is ridiculous. Stored communications warrants are as invasive as an interception warrant and we believe they should be considered as such. Not only does this bill allow stored communications warrants to be obtained more easily, it actually removes safeguards and reduces the level of oversight that is in place for interception warrants.

The destruction provisions in this bill are also a matter of concern. The bill requires that the information obtained under a warrant be destroyed only when the chief officer decides that the information is no longer relevant for an investigation. We believe that this requirement is too arbitrary. What happens if copies of communications are stored and the chief officer does not get around to dealing with them? This information could potentially be stored indefinitely. We believe that measures are required to ensure that accountability is maintained.

To provide the minister with authority under the bill to appoint part-time members of the AAT as issuing authorities is, we believe, not responsible. In their submission, the Australian Privacy Foundation stated:

We suggest that the threshold is far too low—part-time members of the AAT and ordinary state and territory magistrates should not carry this responsibility, even if they are legal practitioners. Restricting warrant-issuing authority to judges, full-time magistrates and full-time senior AAT members would be an important safeguard against it becoming too easy for enforcement agencies to obtain a warrant.

Comparisons between reports released by the Attorney-General’s Department and the administrative office of the US courts have shown that warrants are more readily issued in our country than in the US, with 26 times more warrants per capita being issued in Australia. This indicates that there is probably an argument that it is already too easy for enforcement agencies to obtain warrants. In the reporting year 2003-04, 76 per cent of warrants were issued by members of the AAT rather than by judges. AAT members do not have tenure, are appointed by the government, and work on contract.

The Democrats support the recommendation to review the adequacy of appointing AAT members as issuing authorities for interception warrants. We also reject the appointment of part-time members of the AAT as issuing authorities for stored communication warrants. The reality that more agencies will be able to apply for a stored communications warrant under part 3-3 of the bill is also an issue of concern. We believe that the possibility that numerous state, territory and Commonwealth agencies may all have the authority to contact hundreds of carriers poses a very dangerous scenario for privacy rights. Again, there is a scenario here where a distinction is drawn between stored and live communications. Only enforcement agencies have the ability, under the Telecommunications (Interception) Act, to intercept live communications.

If the parliament decides that a phone call should not be intercepted unless it is for a serious offence, how have we come to the conclusion that where that phone was not answered and a voice message was left, it should be open to a variety of state and Commonwealth agencies? This bill not only provides for a number of agencies to access stored communications warrants; it also reduces their accountability in parts. The explanatory memorandum states:

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.

Regardless of the thresholds applied, the covert nature of the warrants and the potential for abuse make reporting obligations fundamental.

I do think it is a little amusing that the government has included in the bill a section for civil remedies when the entire operation of the warrant is covert. How does the government expect an aggrieved person to exercise their right to civil remedies when they are completely unaware that a warrant has been exercised against them? This is clearly the government paying some form of lip service to the idea of accountability but, in fact, flaunting their complete disregard for it.

My amendments have been circulated in the chamber. I am assuming that Senator Ludwig’s amendments are not far away. I am sure this will give the government plenty of time to review our suggestions, our amendments and our ideas. I again make the point that this is not just about us reviewing the government amendments which arrived at 9.56 am this morning; it is about extending courtesy to our colleagues so that they can review these amendments as well.

In relation to B-party warrants, the Democrats are particularly concerned about schedule 2 of the bill, which outlines the existence of B-party warrants. The bill should not be passed in its current format. B-party warrants allow the interception of communications with people not even suspected of a crime: innocent Australians. During the inquiry into the Telecommunications (Interception) Bill 2004, the Victorian Privacy Commissioner stated:

Telecommunications is one of the common means by which many individuals discuss their most private and intimate thoughts, as well as the ordinary daily details of their lives. They may also engage in political discourse, discuss business ventures, seek legal and other professional advice. People have a legitimate and reasonable expectation that the State will not listen surreptitiously to these conversations. Accordingly, any such interception has been subject to strict regulation under law, with oversight.

The arguments put forward by the Attorney-General’s Department and the Australian Federal Police are that, in some circumstances, it is necessary to intercept communications of non-suspected persons in order to obtain information about a person of interest. This does not take into account all other communication between a non-suspect and other non-suspects during the course of their day. Mr Cameron Murphy, who is the spokesperson for the New South Wales Council for Civil Liberties, stated in an ABC interview:

This is the first time in Australian history that we see the police being given the power to tap the phones of people who are not suspects, who are innocent people and just people who happen to be in contact with someone, likely to be in contact with someone who is a criminal. And it massively expands police surveillance and it is directly targeted against innocent people who are doing nothing wrong.

Mr John North, President of the Law Council of Australia, stated in his evidence to the inquiry:

The Law Council urges the government to abandon proposals to allow telecommunications surveillance of innocent people. Persons not suspected of crime should not be subjected by the state to surveillance. This proposal abrogates fundamental freedoms and human rights of people not suspected of any crime or wrongdoing.

The bill does not have a regard for the privacy of a non-suspect; nor does it have any regard for potential breaches of professional privilege or confidentiality. All conversations between a non-suspected person and their lawyer, their priest, their religious leader, or even their member of parliament are not necessarily protected. The bill does not adequately consider the importance of professional privilege or confidentiality; and, where this privilege is abrogated, we believe it does erode the ability of lawyers, medical officers, MPs, religious leaders, et cetera, to offer their services in confidence. Professional privilege should be protected from interception not only for privacy reasons; it should be protected for reasons of good public policy. It is crucial that Australian citizens are assured that whatever information they give in confidence remains in confidence.

During the inquiry the Attorney-General’s Department referred to the precedent established in Carmody versus MacKellar and Orrs which allows for the abrogation of legal professional privilege. I do not believe that this should be applied by analogy to justify the interception of telecommunications to innocent third parties. Similar to stored communications warrants, we believe the ability of an aggrieved person affected by a B-party warrant to access civil remedies under the Telecommunications Act is ineffective. Where a person has their communications unlawfully invaded or where material used from that interception is unlawfully recorded, they have no ability to seek redress because they will be completely unaware that the warrant has been exercised. Not telling the individual that a warrant has been exercised against them, even when such disclosure would not affect the investigation, prohibits them from exercising their rights to remedy. The accountability measures in this bill are not adequate and through our amendments and through other amendments that have been proposed we seek to strengthen these protections in the bill. That is why we need adequate time to analyse the amendments and their effect and debate this bill in the committee stage.

The bill as it relates to equipment based warrants has led to much confusion particularly in relation to the scope of its operation. During the inquiry I asked the Office of the Privacy Commissioner about the comment in their submission and was told:

The office has not yet been able to fully determine the limits to the scope of the operation of schedule 3.

Mr Timothy Pilgrim, Deputy Privacy Commissioner, replied:

... it is an issue that we have been grappling with and, given our time to be able to devote to issues such as this, have not been able to fully explore ... What we are not able to grapple with—or have not had time to grapple with—is how that might be broadly applied in various scenarios.

Electronic Frontiers Australia in its submission stated:

This proposal appears to have an inappropriately and unjustifiably high potential to result in interception of communications of persons who are not suspects (i.e. are not named in the warrant) because, among other things, the types of device numbers proposed to be used do not necessarily uniquely identify a particular device.

During the inquiry, in response to questioning about the equipment based warrants, the AFP stated that there is the possibility that the unique identifying number for a telephone or computer may get mixed up with other telephones or computers. It was stated by the AFP:

We would make all efforts we could to ascertain that [the unique identifying number] through our inquiries to the telecommunications companies. The concern, of course, is that some of these are fraudulently obtained.

How can the government endorse this legislation if the AFP is not able to guarantee that a piece of telecommunications equipment specified in the warrant is in fact that piece of equipment? The Blunn report, which was the motivator for the changes and for introducing this legislation, did not recommend the introduction of equipment based warrants. Rather, the report recommended that ‘priority be given to developing a unique and indelible identifier of the source of telecommunications and therefore as a basis for access’.

I also asked during the inquiry stage a number of the witnesses for their opinion on how this bill might operate in conjunction with a raft of other legislation that deals with antiterrorism and other such measures when it came to their impact on privacy rights. When you add this to ASIO legislation, the Telecommunications (Interception) Amendment (Stored Communications) Bill, the Surveillance Devices Bill, the Australian Passports Bill, the intelligence services legislation and the Anti-Terrorism Bill, the cumulative effect of these laws with other legislation that has been recently passed does remove civil liberties in this country in an unprecedented fashion. We are trying to build in some safeguards to this legislation tonight. All of these bills have an impact, in some cases necessarily, on civil liberties. When they operate together we see a huge cumulative impact that I think is incredibly deleterious to this democracy. We are entering a very new stage in Australian history when government interference in the daily lives of Australian citizens is not only to be expected but almost accepted. We recognise the difficulties in monitoring the security and privacy of the existing regimes but we are not convinced that the bill in its current form should be accepted. It must be amended and I implore the parliament once again to consider the amendments in a timely fashion. (Time expired)