Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to 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 The contentious provisions in the Telecommunications Interception Legislation Amendment Bill 2002 were withdrawn after the Senate legal and constitutional committee recommended against their inclusion.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)

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

In the short time remaining, I will begin to address some of the concerns and comments of the Australian Democrats in relation to the Telecommunications (Interception) Amendment Bill 2006. Senator Ludwig has outlined, in many respects, the intent and content of the schedules of this legislation, which we agree is intended as an amendment to the Telecommunications (Interception) Act 1979. It is intended to implement some of the recommendations of the Report of the review of the regulation of access to communications, better known as the Blunn report. It is intended as a necessary update of the Telecommunications (Interception) Act, but it does have some alarming consequences, particularly in relation to privacy rights of Australian citizens. That is something that I will go into in more detail when I address some of the aspects of this legislation.

In the time remaining, however, I want to reinforce some of the comments that Senator Ludwig has made in relation to the process. The process tonight is not good enough. There was a truncated Senate committee process for this complex and significant legislation. Committee members were able to be a part of that process, but there was a shortened time for inquiry and report and we had witnesses that were very up front about the fact that they could have done with more time. In some cases—equipment based warrants et cetera—some of the complexities of those debates could have been covered more satisfactorily with extra time.

As for today, I understand the government has pulled off a bill—for a variety of reasons, but particularly because of the absence of a senator—but this is a piece of legislation on which the committee inquiry has only just reported, as Senator Ludwig has stated. The report came down yesterday. I acknowledge the government amendments have been circulated. I have to say, Mr Acting Deputy President Ferguson, that that is because you have more access to resources than some of us may have in preparing our amendments. I think it was about 9.56 am that the government amendments were circulated—so on the day of this debate. Senator Ludwig and I have not had an opportunity to circulate our amendments, because our amendments are still—

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

I’m getting there!

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to 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)

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I congratulate Senator Stott Despoja for that summary of the outrageous aspects of this legislation. Here we are in the Senate with seven senators in attendance dealing with a piece of legislation which egregiously allows snooping into the private affairs of Australians in a way which is unprecedented in the history of this parliament, certainly in peacetime. This Telecommunications (Interception) Amendment Bill 2006 goes way beyond the pale and way beyond what is required for government agencies to effectively check the threat of terrorism.

There is a pattern of misbehaviour by the government which means that almost any incursion on civil liberties can be brought into this parliament. If it has a whiff of terrorism about it—and it does not even have to be stated—the government, with an opposition that is more and more willing and compliant, can have that legislation go through with less and less attention by the media and less and less knowledge by the Australian public of how rapidly time-honoured values in this great democracy of ours are being eroded. We are seeing the rights and prohibitions on the government’s ability to intrude itself into the freedoms of individuals being eroded—and I welcome the minister to the chamber.

This legislation does not have the word ‘terrorism’ in its title but there is no doubt that it is a product of the fear tactic used by the Howard government on a broad scale. It is another one of those things that has come from Attorney-General Ruddock’s thinking. He came into the ministry saying he had in mind new legislation to deal with terrorism as he would have it and, ipso facto, to curb the rights and freedoms of Australians at large. This legislation does that more than perhaps any of the other pieces of legislation we have seen since his ascent to the ministry, to the Attorney-Generalship. In particular, it allows warrants to be issued for a whole range of perceived crimes to allow the interception of communications between Australians. That includes, in this age of cyberspace, stored communications—stored information—that people or entities may have. It does not require that the person or persons that are suspect, and for whom the interception of private information is allowed, be involved in potential terrorism or indeed serious violent crime.

This snoop legislation allows the Howard government to intrude into the telecommunications of people suspected of tax evasion, quarantine breaches and a whole range of matters including, under the new sedition offences, people who might be suspected of urging the overthrow of the Howard government itself. We remember how recently it was that large sections of the community, including the media, were galvanised into fruitless action against the government increasing the penalties for people that could be perceived to be threatening its overthrow. Now we have the government not only having established much more draconian laws for people perceived to be planning a violent overthrow or overthrow of the government—and you can imagine the imagination that goes into information received by agencies of the government on that score—but also, under this legislation, allowing the telecommunications of people who, so far as the agency knows, are thought to be entirely innocent of any such potential to evade taxes or quarantine, for example, to be intercepted. Those communications will be, effectively, processed by and for the government in the name, ostensibly, of the public interest. But that is against the public interest, if you take into account the fact that this country is not a dictatorship but a long established and proud democracy based on the principle of the right of the individual to her or his privacy against unnecessary government intrusion.

This bill is all about the government taking unto itself a whole range of opportunities to intrude into the privacy of average, innocent Australians and other Australians who are suspected of a range of potential criminal behaviours which may not in any way involve violence to persons let alone to the government or to good order in terms of the physical safety of our community. It is quite outrageous, but the government is getting away with it because this is an era of fear. JFK, of course, said we have nothing to fear but fear itself. Now the government has brought in an era in which that dictum is being shown for what it is. We have a great deal to fear from this Howard promoted period of fear. Legislation like this comes before the parliament and the Senate without any proper public debate and ignoring the advice of many important legal thinkers, civil libertarians, philosophers and people concerned for the ethics of this great nation of ours.

Let me quote from one section of the report by the committee to do with the interception of telecommunications of citizens who are known or thought to be entirely innocent of any crime other than that they may be, for example, in phone contact with someone who is thought, potentially, to be implicated. The Gilbert and Tobin Centre of Public Law said:

We believe ... that the Bill abrogates the right to privacy substantially more than is necessary to achieve the Bill’s security purposes. It is important that legislation does not abrogate rights more than is necessary and incidental to achieving the purpose of the legislation. Where legislation does disproportionately abrogate rights, it may have adverse, unintended effects.

It certainly may have. For example, it would give opportunity to government agencies right through to ministers to intrude upon the rights of innocent Australians in a way that is totally contrary to our history and this nation’s proud traditions. The Law Council of Australia said:

Schedule 2 of the Bill if enacted allows certain law enforcement agencies and ASIO to intercept telecommunications of a person who has no knowledge or involvement in a crime, but who may be in contact with someone who does. In other words, people suspected of nothing will be under surveillance ... This is the first time ever in Australia’s history that law enforcement agencies will be given power to intercept telecommunications of people who are not suspects who are innocent people.

Let me repeat that, because this is coming from the Law Council of Australia:

This is the first time ever in Australia’s history that law enforcement agencies will be given power to intercept telecommunications of people who are not suspects who are innocent people.

A pity the chief law officer of this country, the Attorney-General, does not listen to the Law Council of Australia, but in the arrogance of this government—and it is a dangerous arrogance—has taken unto himself to put up legislation like this effectively unaltered by any public submission. Senator Stott Despoja quoted from the New South Wales Council of Civil Liberties. Mr Cameron Murphy from that council had something to say about the Attorney-General’s legislation, which we are going to see put through this Senate a little later this evening—if it is convenient to the government; if not tomorrow—by the sheer weight of numbers, regardless of what debate takes place here and regardless of the warnings from people outside this place who have far more regard, I submit to you, Madam Acting Deputy President, than the Attorney-General or the Prime Minister of the day for this nation’s great traditions.

Let me remark on comments by Senator Milne earlier this afternoon in a debate where she pointed out that it is this very government that purports to uphold the traditions of Australia that uses every opportunity to aggrandise itself before the flag, in front of the symbolism of this country, in this parliament wherever it can, ripping down the great traditions of this country, treading them into the ground—not least the rights of individuals. One would expect a conservative coalition, a government largely made up of members who have the word ‘liberal’ in their job description, to trample time-honoured rights—in particular to immunity from government snooping, which is not in the national interest—into the dust.

Mr Murphy said on behalf of the New South Wales Council of Civil Liberties:

We can accept that, if someone is a suspect in a criminal investigation, it is a matter of balancing the interests of the public in ensuring that that suspected offence is investigated and that the person is prosecuted and dealt with under the law. In this amendment, we are dealing with something that goes much further than that. We are talking about innocent B-parties—

that is, innocent people—

people who are not themselves suspected of any offence. The whole regime of B-party warrants shifts the focus of the investigation from someone who is a suspect to an investigation surrounding the innocent B-party on the off-chance that a suspect might contact them and there might be useful information gleaned that way.

If you can argue that you should intervene on the privacy of somebody who might know somebody who might be suspected of a tax evasion, then you can argue that somebody who might know that somebody who knows that somebody might themselves be investigated. Where do we end up here? It is a very logical progression that nobody is going to be safe from their privacy being intruded upon, invaded, unknown to them, as they go about their innocent life in this democratic nation of ours, by an increasing number of government agencies with less regard to the wellbeing of the country and greater regard to the politics of the government of the day. It is very dangerous legislation. Were it to be conscribed to would-be terrorists and murderers, I would have no difficulty with that. But this is nothing of the sort. This is a broad-reaching intrusion into the private lives of Australians to foster the ever-increasing size of government agencies which this government has promoted and is paying for out of the taxpayers’ pockets in an age of fear.

I saw an essayist on the weekend—I might get that and read it to the committee a little later tonight—talking about the much healthier role government would have if it explained to us all that we live in an age of insecurity and danger. We have to accept a proportion of that and we have to balance keeping our freedoms with that danger, but we do not have a public debate at that level. The fact that there are only two government representatives in this chamber at the moment shows that the government is not going to engage in that sort of debate. It has the numbers. The executive, the Prime Minister’s office, in this case along with the Attorney-General, has control of the parliament, effectively. There is nobody in the House or in the Senate in the coalition who is going to stand up for what were considered until tonight basic human rights in this country.

Nobody is going to stand up against this gross intrusion on the International Covenant on Civil and Political Rights—Australians are losing out here to international rights recognised right around the world—and make a stand in favour of the individual. No, this is a Liberal government which believes in the all-important ability to legislate for the collective—that being itself—against the interests of the public. It is an extraordinary turnaround in the way we would expect a government to behave but, then again, this is a government that tramples all over states’ rights after a century of conservatives arguing for states’ right. Here we have a government that is trampling all over individual liberties in this country after a century of arguing that it was the champion of civil liberties. That is now left to the Democrats and the Greens in this place because the opposition, the Labor Party—guess what?—is going to go over and support the government on this legislation.

I will be moving some pretty direct amendments on behalf of the Australian Greens. They do not cover the worries, the anxieties, that people have brought to the Senate committee and that other people obviously would have if they knew about this legislation, but they at least test it out. One of the questions I would like the Attorney’s representative in this chamber, the Minister for Justice and Customs, to explain to us—and I will be pursuing it somewhat in the committee stage—is to what degree, for example, Federal Court judges or members of parliament are going to come under secret eavesdropping by government agencies at the behest of the Attorney-General under this legislation.

I have, as part of the amendments here, a prohibition on Federal Court judges, High Court judges and federal and state members of parliament being listened in to under the extraordinary depth, breadth and reach of this legislation. People listening to this would say—and I would be one of them—immediately: ‘Why should they be protected in a way that other citizens aren’t?’ I agree entirely; I think other citizens should be protected. But I would like to know—and I will be questioning the minister on this—what protection members of parliament, and indeed High Court judges and Federal Court judges, have. Are we crossing the line here between the separation of powers? Does this make judges vulnerable to political snooping? Potentially it does. Does it mean that members of parliament will not have the time-honoured protection from snooping by government ministers’ fiat that they have had in the past?

There are other questions that will be asked. The first amendment I will be making will be to ensure that the International Covenant on Civil and Political Rights and Australia’s other obligations to democracy, to the freedoms and rights which we espouse and that we are going overseas to protect, be protected here in Australia.

Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I will deal with the questions that Senator Brown mentioned at the appropriate stage, when, no doubt, they will be raised. I would like to thank senators for their contributions to the debate, and I thank the members of the Senate Legal and Constitutional Legislation Committee for their efforts in inquiring into the provisions of what is a very important bill. 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 efforts to ensure that there are appropriate privacy protections for the users of Australian telecommunications systems. (Quorum formed)

The implementation of the recommendations of the Blunn report and the regulation of access to communications provide greater certainty and clarity for our law enforcement and regulatory agencies, telecommunications industry participants and users of Australian telecommunications systems. The new stored communications warrant regime implements Tony Blunn’s recommendation for overarching legislation regulating access to communications such as email, voicemail and SMS messages. 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.

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. Interception under these new amendments will be used only as an investigative tool of last resort and will be subject to strict controls. It will be available only for the investigation of the most serious crimes. The bill achieves an appropriate balance between providing for the access needs of law enforcement and security agencies and maintaining the privacy underpinnings of the interception regime. Strong safeguards already contained in the interception regime will continue to apply. These include restrictions on the use of any intercepted material, as well as independent oversight and annual reporting to the parliament.

I note that there will be amendments moved at the committee stage. There are a number from the opposition and the Democrats, I think, and certainly the government will be moving amendments. The government amendments in part relate to the Senate committee’s consideration of the bill as well as some amendments which have been included to ensure the effective operation of the stored communications regime. But we will deal with those during the committee stage.

These amendments, which I will outline in greater detail at the committee stage, are practical adjustments to the measures in the bill to enhance its operation and to add further accountability measures. The government will continue to consider the recommendations made by the Senate committee in its report in the coming months. In the event that further amendments to the measures in the bill are appropriate, the government would anticipate addressing those issues in the spring session of parliament. This bill demonstrates the government’s commitment to providing comprehensive safeguards for the privacy of communications while ensuring appropriate access for the purposes of combating serious crimes and threats to national security. (Quorum formed)

In relation to the contributions by various senators, some questions were alluded to. I think Senator Brown mentioned some. I would raise one aspect. Senator Stott Despoja compared the Australian situation to the US situation. Certainly it is misleading to compare Australian interception rates with US interception rates. We have totally different legal frameworks. Both the Attorney-General and I have commented on this before. The Attorney-General addressed this comprehensively in the second reading speech. I will not go into great detail here, but it is obvious that, where you have different regimes, you will have varying statistics in relation to interception, be they telephone or otherwise, and to compare them is indeed misleading. In fact, it could be argued that, if you have more warrants issued in a judicial system for the interception of telephones, it could mean that you have greater safeguards in that you have to get warrants for those intercepts and that, in those jurisdictions which have a lesser amount of warrants, there was not a requirement that in every case you have a warrant. That is just one perverse conclusion that could be drawn from a comparison between Australia and the United States. I certainly take issue with that point that was made by Senator Stott Despoja.

This is a very important bill indeed. It is vital for the interests of this country that it be passed. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.