Andrew Bartlett (Queensland, Australian Democrats) Share this | Hansard source

I move Democrat amendment (1) on sheet 5478 circulated in the name of Senator Stott Despoja on behalf of the Australian Democrats:

(1)

Page 2, (after line 11), after clause 3, insert: 4 Review of operation of Act

(1)

The Minister must cause an independent review of the operation of this Act to be completed at the end of every five years, with the first review due for completion on 30 June 2013.

I think I have notified all the whips, but just to make sure everybody is clear: all of the other circulated amendments from the Democrats that are on the running sheet I will not be proceeding with. They were sent around back in March when it looked like we might not get a committee review of this. We have had the committee review, so things have moved on. This single amendment is based on committee recommendation No. 7. I think Senator Ludwig has addressed this to some extent and has pre-empted the fabulous argument I am about to put forward, and he has rejected it before he has heard it on the basis of committee recommendation No. 7, which recommended the insertion of a statutory requirement for the act to be independently reviewed every five years. While the committee recommended the review requirement be inserted via separate legislation, the Democrats do not see any reason why it could not be inserted now.

This is the third time the act has been amended in as many years, and those amendments have dealt with controversial aspects such as B-party warrants, which I should repeat the ALP, when in opposition, had significant issues with at the time; expansions in the definition of ‘enforcement agency’ allowing an unprecedented number of organisations access to communications information—there were difficulties in defining exactly what telecommunications data is and therefore what law enforcement agencies are able to access; access to prospective, real-time telecommunications data and location information which, combined with the emergence of many new technologies threatens to act as an alternative surveillance mechanism; and further examination of device based warrants. As a result, it is not clear if an appropriate balance has been struck between necessary, lawful and proportionate access to telecommunications by law enforcement agencies on the one hand and the public’s right to communicate free from surveillance on the other. The risk to personal privacy is increased in the committee’s words ‘in lieu of an express right to privacy under Australian law’ and by the lack of any formal human rights instrument in Australia. Clearly, a comprehensive and independent review would be the best way to determine whether the correct balance has been maintained.

It is clear in the Democrats’ view that we need an urgent audit of the powers that are available under the act as a follow-up to the Blunn review, which was completed in 2005—that was nearly three years ago. Mr Blunn stated in his report:

It is inevitable that there will be further reviews.  Indeed given the rate of changes within the industry and within society more generally I believe that there is a strong case for regular reviews, say at three yearly intervals.

This amendment opts to implement the committee’s recommendation for review within five years rather than the shorter three-year period suggested by Mr Blunn, although a strong alternative can be easily made to support an immediate review followed by recurring reviews every five years. The Office of the Privacy Commissioner is also of the view that the operation of the act should be subject to overall independent review at least every five years due to the number of amendments to interception legislation in recent years and the resulting incremental expansion in powers.

Senator Ludwig, the minister representing the government, pointed out that there have been a number of reviews—Senate committee reviews and others. I think he said seven; I might not be right, but it was a significant number, anyway. I accept that but I think it is worth pointing out that the Senate committee inquiry we have just had was not a review of the totality; it was a review of a specific set of amendments. There is a real risk when you slice down and look at particular areas in a timely and critical fashion that you can risk not seeing the forest for the trees. I think this amendment seeks to have a review of the forest—the totality of how it operates—and have that regularly required in an independent way through the statute. That is the purpose behind it, and I think it is a meritorious one. I will leave my remarks there.