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

by leave—I move government amendments (3) and (12) on running sheet PA337:

(3)    Schedule 1, item 2, page 4 (line 29) to page 5 (line 6), omit paragraph 5E(1)(c), substitute:

             (c)    could, if established, render the person committing the contravention liable:

                   (i)    if the contravention were committed by an individual—to pay a pecuniary penalty of 180 penalty units or more, or to pay an amount that is the monetary equivalent of 180 penalty units or more; or

                  (ii)    if the contravention cannot be committed by an individual—to pay a pecuniary penalty of 900 penalty units or more, or to pay an amount that is the monetary equivalent of 900 penalty units or more.

(12) Schedule 1, item 9, page 27 (lines 19 to 26), omit paragraph 139(3)(c), substitute:

             (c)    could, if established, render the person committing the contravention liable:

                   (i)    if the contravention were committed by an individual—to pay a pecuniary penalty of 60 penalty units or more, or to pay an amount that is the monetary equivalent of 60 penalty units or more; or

                  (ii)    if the contravention cannot be committed by an individual—to pay a pecuniary penalty of 300 penalty units or more, or to pay an amount that is the monetary equivalent of 300 penalty units or more.

At the outset, I say that these were not a result of the Senate committee recommendations, on which there has been some discussion during this committee stage. What I can say is that amendments (3) and (12) amend the references to pecuniary penalties in the bill to ensure that stored communications warrants are available to agencies in connection with the investigation of offences punishable by reference to a pure monetary amount. The threshold for a stored communications warrant is the investigation of an offence of at least three years imprisonment or a penalty of 180 penalty units, which equals $19,800.

Stored communications information can be used and disclosed in connection with the investigation of an offence of at least one year imprisonment or a penalty of 60 penalty units, which equates to $6,600. These amendments will ensure that enforcement agencies can gain access to and use stored communications via the stored communications warrant regime in appropriate circumstances. As I said, this is not a result of the Senate committee recommendations; they are amendments that the government thought would enhance the operation of this act. I commend the amendments to the committee.

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

One of the things I think this highlights is that it is a necessary amendment. It was a matter that looks like it was missed. In this instance, it does seem that the government ignored the Senate committee report and then went along on its own track and found a couple of errors and omissions of its own accord. It is a pity that it did not provide as much diligence to the committee report’s work as well. In any event, it is a clarification that is required and should be dealt with.

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

The Democrats will be supporting these amendments moved by the government. My understanding is that these amendments do clear up a mistake. As I recall, this was referred to in the Senate committee. If I am on the right track, ASIC referred to the issue involving civil penalty units, so we were conscious of this and are glad the government has addressed the issue.

Question agreed to.

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

I move:

(4)    Schedule 1, item 2, page 5 (lines 20 to 25), omit section 5F, substitute:

5F When a communication is passing over a telecommunications system

        (1)    For the purposes of this Act, a communication:

             (a)    is taken to start passing over a telecommunications system when it is sent or transmitted by the person sending the communication; and

             (b)    is taken to continue to pass over the system until it becomes accessible to the intended recipient of the communication.

        (2)    However, if a communication is sent from an address on a computer network operated by or on behalf of the Australian Federal Police, it is taken not to start passing over a telecommunications system, for the purposes of this Act, until it is no longer under the control of any of the following:

             (a)    any AFP employee responsible for operating, protecting and maintaining the network;

             (b)    any AFP employee responsible for enforcement of the professional standards of the Australian Federal Police.

        (3)    Subsection (2) ceases to have effect at the end of the period of 2 years starting at the commencement of this section.

This amendment relates to the meaning of when a communication is passing over a telecommunications system and provides greater clarity. The government believes this amendment is necessary and, in part, responds to recommendation 16 of the Senate committee report.

Communications that are passing over the telecommunications system remain subject to the prohibition against interception. Communications that are not passing over the telecommunications system—that is, stored communications—are subject to the new prohibition against access to stored communications. The amendments and the bill generally ensure a comprehensive level of privacy protection for the users of the Australian telecommunications system. What we are saying here—and there has been much discussion of this in relation to real time intercepts and others, and I have referred to the Blunn report earlier—is that, once the communication has been transmitted, it remains still and becomes a stored communication. Of course, that is a very different situation to where you have a communication that is in the process of being passed over the telecommunications system or in the process of transmission. I think enough debate has been had in relation to the difference between a stored communication and a communication that is in transit. I will not take it any further other than to say that this is an important clarification and that it responds to the Senate committee report.

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

That is all very well and good for 5F(1). The difficulty I face relates to 5F(2), which is a proviso. As I understand it, it goes on to say:

However, if a communication is sent from an address on a computer network operated by or on behalf of the Australian Federal Police, it is taken not to start passing over a telecommunications system, for the purposes of this Act, until it is no longer under the control of any of the following:

Then we have two paragraphs (a) and (b). We agree with what the minister said with regard to 5F(1). It is a matter that the committee report dealt with, and we think it needed to be clarified. This does that, and we are in a position to support it. With regard to 5F(2), I am not sure exactly how we do this but, if I cannot get the minister to do it, I will move to have 5F(2) split, because that is a separate issue which you have bound up in 5F(2) and 5F(3).

There seems to be a separate issue that is being dealt with in (2) and (3), because you have also then got the ‘period of 2 years starting at the commencement of this section’. So perhaps the minister could indicate firstly what the import of (2) and (3) is and then whether he is prepared to separate those out. The minister does not need to deal with (1) again, in the sense that we accept that (1) is from the committee report. But I cannot recognise (2) from the committee report. It might be one of those ones where you have again gone off on a frolic of your own, as I indicated earlier.

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

This relates to government amendments (5) and (6), which are next on the list. It relates to the Australian Federal Police. It might assist the committee if I just outline a bit of background to this. The Australian Federal Police requested an amendment to the bill to allow the AFP to copy all incoming and outgoing emails to and from the AFP network for professional standards purposes. Accordingly, the definition of ‘intended recipient’ and ‘passing over’ will contain an AFP-specific definition in the bill to mean, for AFP purposes only, a network administrator lawfully engaged by the AFP. This will mean that, for the AFP only, a communication is no longer passing over the telecommunications system, and therefore not subject to the general prohibition and offences against interception, as soon as a communication can be accessed by a network administrator employed by the AFP, for example, at the firewall or the mail sweeper server.

I note that the issue of network administration applies to all organisations, both public and private, and is one in relation to which the Attorney-General’s Department is undertaking further work. A policy proposal regarding a long-term solution to the conflict between the general prohibition against interception and the need to allow appropriate access for network administrators to conduct their activities lawfully is yet to be finalised as it is still the subject of ongoing consultation with interested stakeholders. So it really is a question of the AFP being able to monitor its own network, and of course that is a request by the AFP for the monitoring of professional standards. I will talk to (5) and (6), if I may, because I think that clarifies the position.

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

Can we split the amendment?

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

I think we would like to keep it as it is, for the reasons I have mentioned.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Minister, I understand it is possible to split your amendment so that we could move it in two sections.

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

Okay, we will do it that way. I will just outline what we are getting at, just so that we take the argument in its context. An email would not commence its passage over the telecommunications system until such time as it exits the AFP network boundary, and ceases its passage as soon as it enters the AFP network at the firewall or mail sweeper server. Of course, that would enable lawful access to those communications for the AFP within the AFP network boundary.

As I have just said, we are looking at other networks but, in the first instance, the AFP has asked for this ability for professional standards purposes, and we can understand that. We have just introduced into the parliament legislation which deals with AFP professional standards and the ACC. The amendments that I will be proposing are subject to a sunset clause and will cease to have effect two years from the date of commencement. But I think that that is important for the AFP. We can take the vote in two parts, but we believe that it is an important aspect for quality assurance or, more importantly, professional standards assurance for the AFP to monitor its own network. I commend government amendment (4), but I appreciate that if that is the way the committee wants to deal with that amendment then we will deal with it in two parts.

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

Thank you, Minister, that in fact does help. I suspect the chair is following this better than I am, but in amendment (4), 5F(1) becomes one motion. Then it would be (2), and (5) and (6) could be moved at the same time as they relate to the same parts. Or you could number them the way you like.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Can I take some liberty as chair and clarify this. I suggest that government amendment (4) be put in respect of proposed section 5F(1). There being no objection, the question is that government amendment (4) on sheet PA337 in respect of proposed section 5F(1) be agreed to.

Question agreed to.

The Temporary Chairman:

The question now before the committee is that government amendment (4) on sheet PA337 in respect of proposed section 5F(2) and (3) be agreed to.

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

I will speak to that. This is a matter that has come up before, but there are a number of questions that the minister might be able to help the chamber with. It is a new matter in that it has not been to the committee. It was not proposed as part of the original bill. It appeared to be an afterthought. It was not in the submission, but the AFP had the opportunity at the committee hearing to raise this issue as a matter that they might want to pursue or as an additional matter. They could also have taken the opportunity when appearing before the committee on the particular day to raise it as an issue. They did not seek to. Let me also say that it is not a new matter because the AFP have asked for this or complained about this before. If the government had been minded to deal with it in this bill, it could have been put in the bill and could have allowed the committee to then deal with it. So it makes me suspicious, I have to say.

If I recall correctly, this is a matter that came up before the committee in respect of stored communications. The AFP were complaining about the difficulty they would have in ensuring that they could monitor incoming emails. I am happy for the minister or the AFP to correct me, but my understanding was that, for integrity purposes, they wanted to monitor incoming emails of law enforcement officers through their network before the intended recipients received them. It is similar to a covert application to an ISP, which would then require a warrant. That is why you effectively require an exemption in this part; otherwise, they would have to have a covert warrant—that is, a stored communication warrant—to be able to effect the same result.

Quite frankly, I did not understand why when they raised it some time ago. Clearly, they did not want to raise it because they knew the response they might have got from the committee. It seems to me that their systems for whatever reason are letting them down. What they could have done is taken this and dealt with it as part of the ACLA legislation. If it is about ensuring that there are law enforcement integrity measures in place and the network has that, they could deal with it during that time. Alternatively, you could have made it a substantive part of the original legislation.

It is not a new matter. This has been around and was looked at. I do not think that at the time they raised it the AFP saw it as a huge problem. But, if they did think it was such a problem, it surprises me that they did not bring it first. Rather, it looks like they hung back and waited to do it now. I do not know whether the minister was aware of that history of it, but I am sure that the advisers would have been. I am surprised, Minister, that you were not informed about that. If you were informed about that, I am surprised that you were a party to it.

The other issue, of course, is who has been consulted in respect of this new issue. Has the association been consulted about whether or not its members are going to be subject to this type of exception from the stored communication regime? Once you start having exceptions to a stored communication regime, where does that little bit of cotton end? You then start having a whole raft of exception regimes put in place because of other integrity measures or because other law enforcement agencies might also have the same problem. If it is a problem with the computer network, they have had years to fix it. You have certainly given them sufficient resources to be able to deal with it. I would rather have a bit more information from the minister about this. I have raised a number of issues. Some are relevant and some might have an answer. But it would be helpful to have that information before we voted on this—or we could leave that part and move on to others.

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

I think it is probably more important that the minister addresses some of the questions raised by Senator Ludwig, but the Democrats have similar concerns. Our inclination is to oppose this proposal and this aspect of these amendments partly because of some of the unanswered questions to which Senator Ludwig referred. I think there is a bit of an ironic debate about exceptions here. But I would not mind some background on why this has come up now and perhaps some responses to Senator Ludwig’s questions. Otherwise, I think this is something that would be best dealt with at a later stage. I am not quite sure why it has come up at this stage, but I certainly think it would have been important to have had this as part of the deliberative process of the committee.

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

I understand that the AFP has been dealing with the AFP Association. That is my understanding. They were happy with that aspect of it. I certainly met with the AFP Association the other night and discussed a range of things, including the professional standards legislation and a whole range of issues, and it was not raised with me. I certainly have not discussed it with the AFP Association. I understood that the AFP has done that.

With regard to submitting it to the committee, the AFP, to be fair, did not have the policy approval for this at the time of submitting it to the committee to the extent that this is a policy determined by government. It was something that the government was asked by the AFP to approve. That was done recently. I do not think it is of such great consequence that it needs to be held up in any way. I think it complements what we have introduced into the parliament. I think it is something that can be looked at as to its operation along with other aspects of this bill. I personally will keep a close eye on it.

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

I will not delay this any further. We will not divide on this issue. I do not think the minister has answered the questions adequately. I think there are still a couple of questions that remain unresolved in respect of that. Clearly, Minister, you are not going to be able to assist us any further with this. I am not satisfied that the association have been adequately informed about this, but I will take your word that they have been. We should move on.

Question agreed to.

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

by leave—I move government amendments (5) and (6):

(5)    Schedule 1, item 2, page 5 (line 27), before “For the purposes”, insert “(1)”.

(6)    Schedule 1, item 2, page 6 (after line 2), at the end of section 5G, add:

        (2)    In addition to the person who is the intended recipient of a communication under subsection (1), if a communication is addressed to a person at an address on a computer network operated by or on behalf of the Australian Federal Police, each of the following is also an intended recipient of the communication for the purposes of this Act:

             (a)    any AFP employee responsible for operating, protecting and maintaining the network;

             (b)    any AFP employee responsible for enforcement of the professional standards of the Australian Federal Police.

        (3)    Subsection (2) ceases to have effect at the end of the period of 2 years starting at the commencement of this section.

        (4)    If subsection (2) applies to a communication, a reference in this Act (other than in this section) to the intended recipient of the communication is taken to be a reference to an intended recipient of the communication.

I canvassed this earlier in the debate. I simply move the government amendments (5) and (6), which are necessary to ensure the ongoing ability of the AFP to monitor its network to ensure compliance of its staff with stringent professional standards. I do not think I can take it any further than that.

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

I wrapped up the debate in the previous amendment. It is worth indicating that the reason that Labor are not supporting the amendment is not that it may not provide a matter that the AFP requires and it is not that it is a matter that the AFP may not need. We do not know that. I am not convinced by the late submissions by the minister about this particular provision, and our concerns are that, without more information, it should not be supported. There was an opportunity for it to either go to the committee or be dealt with in a more fulsome way. There was no opportunity afforded to us to ensure that it will have the intended effect and will not have any unintended effect.

Having said all that, it is a matter that may prove to have otherwise garnered Labor support, but without more it is one of those matters that we are not minded to support. As I have indicated, we will not divide on it but it is disappointing in the sense that it looks like it is being brought late, outside the original bill and not as an amendment to improve the bill but as a matter that has been added on. On that basis, the Senate has not had the ability to give it appropriate scrutiny. We have not had the scrutiny of the AFP to explain how it will operate and the need for this type of provision, nor have other interested parties examined the provision. On that basis, I think it is reasonable that Labor do not support the amendment.

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

I agree with Senator Ludwig. I just want to make clear for the record, based on the minister’s comments earlier, that I did not intend—and I do not think others in the chamber intended—to have a go at the AFP when the minister was saying that, to be fair, they did not necessarily have policy approval et cetera. I am not having a go at the AFP here. In fact, as Senator Ludwig has suggested, I would have liked to have had the opportunity to ask the AFP about these proposed changes. I think we are having a go at the government in that we are dealing with this legislation and these new amendments only circulated this week. I think this issue of what looks to me like a broadening of the definition of ‘an intended recipient’ is relatively important.

This definitional change has the effect of allowing the AFP network to access emails. I think that these are relatively important matters, but the fact that it is being put forward as some kind of technical amendment bothers me. It bothers me more that people do not seem to have respect for the fact that the Senate committee met in good faith in a short time frame and did its job of scrutinising some of the changes in this legislation. We would have liked the opportunity to discuss these issues. I am certainly not having a go at the AFP or anyone else, for that matter, except government, with whom the policy responsibility lies. I do think that there are potential consequences—unintended or otherwise—of these amendments. We are talking about amendments (5) and (6), but I guess (6) in particular should have been thrashed out in that committee stage. On that basis, my inclination is not to support this and to ask for more information from government and relevant agencies.

Question agreed to.

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

by leave—I ask that it be recorded that the opposition opposed the amendments.

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

by—leave—I ask that it be recorded that the Democrats opposed the amendments.

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

Hopefully we are now looking at schedule 1, item 3, which is on page 2 and is sheet 4882 and page 6 of the bill. It relates to and comes from committee recommendations 14 and 15. It is worth having a look at the recommendations. I do not know whether enough attention during this debate has been paid to the work of the committee; there certainly was a significant amount of work done by the committee in a relatively short time. Recommendations 14 and 15 state:

... The Committee recommends that the Bill be amended to ensure that copies of communications can not be accessed without a stored communications warrant.

                 …         …         …

The Committee recommends that the definition of ‘record’ be amended so that it applies in relation to accessing a stored communication.

A number of concerns were raised. The report says:

... the Committee is of the view that it is essential that the definitions proposed in the bill provide sufficient clarity to support the effective operation of the stored communications warrant regime.

The committee went on to acknowledge:

... the advice from the Attorney-General’s department that in some cases work is continuing. However, the Committee considers that definitional issues should be settled prior to the passage of the Bill.

I took the time to go through that section because I think it highlights what the committee was struggling with. Unfortunately, this seemed to be a rather rushed job, and a number of amendments that the government has now put forward are not part of the recommendations but are additional to them.

It concerns me that those sorts of definitional issues have not been settled, because right back when we started looking at stored communication a lot was said about getting the definitions right to make sure the legislation would work effectively so that law enforcement agencies would have certainty when they applied this law—because they will need certainty to apply it. Also, it will apply to a range of different and emerging technologies which there should not be any doubt about, because where there is doubt there will be litigation, expense and delay—and, just maybe, vital evidence will be lost. That would be a matter that would cause me some concern. In working through this, the committee made the point that those sorts of issues should in fact be settled to such an extent that they are robust and can stand scrutiny. To that end, the committee recommended that the definition of records and the treatment of copies be tightened. So I seek the government’s support and I move opposition amendment (4):

(4)    Schedule 1, item 3, page 6 (line 19), after “communication”, insert “or any record or copy of such a communication”.

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

The Australian Democrats will be supporting the Labor amendment. It is a good amendment. It is one that was covered in the committee. It is something that we have not covered. This deals with the issue of whether a copy or a record can be considered the same as a stored communication and ensures that any copies of records are considered the same as a stored communication and are consequently subject to the same destruction provisions—something that we are quite concerned about. We believe that it is necessary to clear up some of those definitional issues in the schedule. Obviously this helps the AFP understand their requirements on the issue in relation to copied material specifically. So I will be supporting this amendment, which suggests that copies are not to be treated differently from the original stored communications.

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

I think Mr Tom Sherman covered this aspect in a report several years ago. The government considered it then and decided not to proceed with it. As I understand it, the agencies concerned have indicated that there is an administrative burden in this which far outweighs any benefit that might be provided by possible enhanced accountability, and it is the government’s view that the amendment proposed would do little to enhance accountability in practical terms. For that reason, the government does not support opposition amendment (4).

Question negatived.

by leave—I move government amendments (7) and (8) together:

(7)    Schedule 1, item 9, page 9 (lines 12 and 13), omit paragraph 108(1)(b), substitute:

             (b)    the person does so with the knowledge of neither of the following:

                   (i)    the intended recipient of the stored communication;

                  (ii)    the person who sent the stored communication.

(8)    Schedule 1, item 9, page 9 (after line 18), after subsection 108(1), insert:

     (1A)    Without limiting paragraph (1)(b), a person is taken for the purposes of that paragraph to have knowledge of an act referred to in paragraph (1)(a) if written notice of an intention to do the act is given to the person.

Note:   For giving notice, see section 28A of the Acts Interpretation Act 1901.

These amendments, like a previous one, are not part of the Senate committee recommendations. They demonstrate that the government is prepared to consider in an ongoing fashion the whole question of how this regime works. I believe that this is really proof in the pudding of the government’s attitude to having an open mind about adopting enhancements where they are needed. These amendments alter the prohibition on access to stored communication to provide that a communication may be accessed with the knowledge of either party to the communication and that written notice is sufficient to attain the knowledge of those parties.

The effect of the amendments is to clarify that a stored communications warrant only applies where access to the communication is sought without the knowledge of a party to the communication and with the intervention or assistance of an employee of the telecommunications carrier. These amendments further ensure that the knowledge requirement in the stored communications regime does not unduly restrict the endeavours of those agencies to access stored communications in an overt manner. I add that it makes sense that, if you have the knowledge of a party to the communication, it certainly can make a difference in relation to the terms of access. I think that these amendments are sensible. As I said, they are not the result of the Senate committee recommendations, but that is no prohibition to the government making an amendment to its own legislation where it sees a benefit.

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

The Australian Democrats will certainly be supporting amendment (8). I will ask a question about amendment (7) but, in relation to (8), the idea of allowing for the notification of the person against whom the warrant is being exercised is something we support. These knowledge provisions are important. I ask the government to provide clarification as to the definition of the term ‘given’. Does it mean it is given personally? I am not sure. Is it given over the phone or in an email? Could the government elaborate on that?

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

In my previous remarks I mentioned that it was written notice.

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

I thank the minister for that clarification. I want to make clear amendment (7). I note that it states in the explanatory memorandum that it is intended to allow enforcement agencies to access stored communications with the knowledge of the sender or the intended recipient. I want to clarify that that is the effect of the wording of the provision. I am not sure whether I have this right, but the wording seems in some cases to have almost the opposite effect, requiring that the sender and the intended recipient must have knowledge. I want to double-check that.

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

It is either/or: either the intended recipient or the person who sent the stored communication. That is it.

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

Through you, Chair, to Senator Stott Despoja: I do not think it says what the minister said.

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

That is what I am thinking; it is good it is not just me.

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

No, I can understand what it intends to do. I am not sure that is what it actually does. It says the person does so with the knowledge of neither—that is without the knowledge—of the following. One, the intended recipient of the stored communication. I wonder if it meant to say ‘either’. No, it says ‘neither’. Then, Minister, you might just want to have another go at explaining it.

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

It says the person does so with the knowledge of neither of the following, and that is perhaps putting it the reverse way around. In the context of that, my first impression would be to say that ‘either’ would be better. I will tell you what we will do: we will defer this and I will come back to it, because I remain to be convinced that this wording is the best. So we will talk about it over the break and we will defer that. I have not seen it expressed quite that way before and I have dealt with many bills in this place.

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

It could be a double negative.

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

I know, it could be a double negative.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Minister, could I just clarify this: are you still seeking to move amendment (8)?

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

No, I have just said that I am asking to defer—

The Temporary Chairman:

Amendments (7) and (8).

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

amendments (7) and (8). We will move on.

The Temporary Chairman:

The question is:

That amendments (7) and (8) be deferred.

Question agreed to.

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

by leave—I move government amendments (9), (10) and (11) together:

(9)    Schedule 1, item 9, page 10 (line 27), omit “device.”, substitute “device; or”.

(10) Schedule 1, item 9, page 10 (after line 27), after paragraph 108(2)(g), insert:

             (h)    accessing a stored communication by an officer or staff member of the Australian Communications and Media Authority engaged in duties relating to enforcement of the Spam Act 2003.

(11) Schedule 1, item 9, page 26 (lines 17 to 25), omit section 138, substitute:

138 Employee of carrier may communicate information to enforcement agency

        (1)    An employee of a carrier may, for a purpose or purposes connected with the investigation by the Australian Communications and Media Authority of a serious contravention or with the performance of its functions relating to enforcement of the Spam Act 2003, and for no other purpose, communicate to an officer or staff member of the authority the following:

             (a)    lawfully accessed information other than foreign intelligence information;

             (b)    stored communications warrant information.

        (2)    An employee of a carrier may, for a purpose or purposes connected with the investigation by any other enforcement agency of a serious contravention, and for no other purpose, communicate to an officer or staff member of the agency the following:

             (a)    lawfully accessed information other than foreign intelligence information;

             (b)    stored communications warrant information.

These amendments will exempt inspectors of the Australian Communications and Media Authority from the operation of the general prohibition against access to stored communications when they are lawfully engaged in the enforcement of the Spam Act 2003. Similarly, telecommunications carriers, including internet service providers, can pass spam material to officers of the Australian Communications and Media Authority to conduct an investigation under the Spam Act. These amendments will ensure appropriate access to stored communications, such as emails, so the enforcement of the Spam Act 2003 is maintained. This is an appropriate exemption, as access to spam does not include a significant privacy intrusion; spam is of the nature of an unsolicited public broadcast of advertising. I think that speaks for itself. Unsolicited material on the internet is something that everyone is experiencing more and more. It is not a breach of privacy as such, and I commend these amendments to the committee.

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

I suspect I should have requested that amendments (10) and (11) be dealt with together, but I do not think it really matters. Amendment (9) seems to be a technical amendment in relation to the ACMA and the Spam Act. I have to say the Democrats are a little wary of amendments (10) and (11). The provision removes a member of the ACMA from the broad prohibition—outlined in section 108 of the act—of accessing stored communications as long as it has something to do with their investigation regarding the Spam Act. I acknowledge that is the intent, but it does lower the threshold for members of the ACMA.

Progress reported.