The Temporary Chairman:

The committee is considering the Telecommunications (Interception) Amendment Bill 2006 and Greens’ amendment (1) on sheet 4889 moved by Senator Bob Brown. The question is that the amendment be agreed to.

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

Senator Brown’s amendment does not find favour and support with the opposition, and I need to make a couple points in respect of that. When you look at the issues that were gone through, if we had had more time then perhaps the opposition might have been able to have a better look at the amendments proposed by Senator Brown. Those matters were not explored by the Senate Legal and Constitutional Legislation Committee during the committee stage and therefore they were not able to be looked at by the committee in any great detail. It is a shame that that could not have been done. The more scrutiny in this area the better, from our perspective.

It is also worth reiterating some of the issues that Senator Brown covered a bit earlier. If you look particularly at the submission by George Williams, the matters that he raised in his submission really went to B-party intercepts. He had two specific concerns with schedule 2. In his submission he outlined what they were, namely, that the Telecommunications (Interception) Amendment Bill 2006 allows interception and use of all B-party communications, and he went on to articulate those matters, and there was no nexus required between the nature of the warrant and the investigation of the particular offence. His second matter concerned the issuing officers for stored communication warrants. So he had two specific concerns in relation to schedule 2: (a) the B-party intercepts and (b) issuing officers for stored communication warrants. Ostensibly they were picked up in the committee process and recommendations are provided in that committee report which go to addressing those concerns.

He also went on to say that the bill purports to clarify and restrict pre-existing B-party interception powers under the Telecommunications (Interception) Act 1979. What he is effectively saying—and I think that the evidence before the committee also went there—is that currently if you then say, ‘What is the status quo in respect of both stored communication and B-party?’ then it is important to note that the current position would be a continuation of 3L, that is, ordinary search warrants to access stored communication if this bill is not passed. In that respect this bill provides for safeguards that are not presently available if this bill were not supported.

In respect of B-party, it is a slightly more complex position. If you examine the case law that is currently available—and Flanagan’s case has been aired in the committee report—B-party would be available as a policy decision by the AFP, or the AGD perhaps, to use. This bill tries to strengthen the area to ensure that there are appropriate safeguards, which Blunn recommended, that is, in limited and controlled circumstances. What I think the government has not been able to do successfully is ensure that there are sufficient safeguards to protect, and I think that the committee made that point well in providing a range of recommendations to strengthen the provision to ensure that it will strike the right balance between privacy and the use of this power by the AFP.

I will not dwell on that, but I think it was worth while to bring back the debate to where we are in respect of this bill. The government is pushing ahead with it, notwithstanding that the better course would have been to examine the committee recommendations and come back, at least insofar as B-party warrants are concerned. I think stored communication could have been dealt with in a more pragmatic way than the government is now pursuing, and I will have some more to say about that in respect of my recommendations. I will not take up too much time on this amendment. As I have indicated, Labor are not prepared to support the amendment. We think that it might, in principle, have some merit, but unfortunately there has been insufficient time to consider it in any detail. That is the complaint I made last night and I make it again today.

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

Following on from Senator Ludwig, I reiterate my concerns about the process and the time line that we have been given in relation to the Telecommunications (Interception) Amendment Bill 2006, not just for the committee stage for the Senate inquiry but for dealing with a raft of amendments, new ones being included as of this morning. We have had insufficient time to scrutinise some of the proposals. I want to again put on record my concerns that the good work of the Senate committee and the positive recommendations contained in the chair’s report, the majority report, endorsed by coalition members and Labor Party members—I support the recommendations contained in the chair’s report—should go further, and that is why I made a supplementary report with recommendations which now form the basis of my amendments on behalf of the Australian Democrats.

In that context, like Senator Ludwig, I recognise that there are aspects of the Greens amendment that do have merit. Limiting the operation of the act in relation to concerns we have about privacy infringement or invasion is an important thing to do. Anything that seeks to protect professional, legal or other forms of privilege is meritorious. I happen to think that the Australian Democrat amendment seeks to achieve the same ends. Through you, Temporary Chairman Kirk: Senator Bob Brown, I recommend my amendments, which I think do this in a more comprehensive fashion. I am sure that you will support them if—surprise, surprise!—the numbers are such that your amendment goes down this morning.

Subclauses 2A(2)(b), (c), (d) and (e) of the amendment go to the specific issue of professional privilege, be that legal professional privilege, doctor-patient relations, federal and state members of parliament or High Court and Federal Court judges. I acknowledge the worth of that motion, I support the intent and I believe that my amendments seek to do and will achieve a similar thing.

I am concerned, however, about subclause 2A(2)(a) of the Greens’ amendment. I am not sure whether the minister and his departmental advisers will be offering an opinion on their understanding of the consequences of (2)(a) in the Greens’ amendment. Through you, Temporary Chairman: my understanding is that, when you, Senator Brown, specify ‘unless the person is suspected of engaging in the planning of, or other involvement in, terrorist acts or murder’, we are narrowing to a great extent the operation of the act—restricting the use of the entire Telecommunications (Interception) Act solely for the investigation of acts of terrorism or murder. I am not sure whether that is something that the minister can elaborate on, but that is my understanding.

In that case, this becomes a limitation on the operation of the act, and I am not sure whether it strikes the proportioned balance that we have been talking about between the needs of our enforcement agencies in crime fighting and safeguarding and securing the community and, on the other hand, some of the social justice and privacy issues that you and I, Senator Brown, are very concerned about in this debate. I think that there is a strong argument to suggest that this may make the operation of the act too narrow and perhaps does not give sufficient recognition to the needs of enforcement agencies when fighting corruption and other criminal acts—violent assault, sex crime, drug smuggling. I am not sure whether they are knocked out by this provision. If they are not, that would change my view on the entire amendment, so I seek clarification from the government and officials.

That is not because I do not support limitations on this bill. In fact, I am a proponent of safeguards, protections and mechanisms in this bill to ensure that the operation of these warrant regimes is not as far reaching as it currently is. In that respect, I remind the Senate that I have moved amendments that deal with some of these issues—legal, professional and other forms of privilege—as well as other amendments that seek to constrain in some respect the operation of the stored communications and B-party warrants.

Having said that, I am conscious of the need for balance. I understand privacy rights. I know I go on about them a lot in this place, but I do understand that privacy is about balancing the needs of the community—both our personal privacy protections, if you like, and the broader needs of the community. I do not want the government, or the opposition for that matter, to dare suggest that the amendments that I am moving on behalf of my party seek in any way to undermine that aspect of creating a safe and secure society. But, as I and others have said in this place, we do not want to get the balance wrong to a point where we are providing powers to enforcement agencies—unprecedented powers in some cases—that will have a deleterious effect on our community. I do not want the very democratic, positive principles that we are all arguing for to be undermined by some of the legislation or some of the mechanisms that we are employing in order to fight terrorisms or other issues.

So, in that respect, I say through you, Madam Temporary Chairman, to Senator Brown that I have a problem with subclause (2)(a) in this amendment. But the other limitations are, I think, worth while. I do not think it is a surprise that the Australian Democrats would support the notion of recognition of international treaties or conventions. Obviously, not only would we seek to have a bill of rights or charter of freedoms in this nation, we would also seek—as we have attempted to previously and as I attempted to do in relation to the anti-terrorism legislation we dealt with in late November last year—to enshrine in legislation some reference to international treaties such as the International Covenant on Civil and Political Rights. That is not intended necessarily to limit or constrain the law-making powers of this parliament. It is a minimum, with an expectation that we will at least be mindful of, refer to and be conscious of those particular treaties and conventions and our obligations under them.

In that respect, I do not think it is particularly problematic to do as this amendment seeks to do, which is to attempt to include the ICCPR, although I guess it goes a little further in that it cuts out any part of the act that opposes it. So we recognise the intention of the amendment and we are certainly supportive of provisions that give consideration to principles of international human rights law when interpreting domestic legislation. I think you will find, Madam Temporary Chairman, that increasingly there will be debates in this parliament and outside about having some kind of domestic form of protection of human rights and civil liberties in this nation—a bill of rights or a human rights act or whatever we may end up with. The momentum is going to build precisely because of the legislation that we are dealing with today and precisely because of its cumulative effect when viewed in conjunction with other bills that we have dealt with. But (2)(a) makes it a little too narrow for me, Senator Brown. Having said that, I think I have picked up the intent of the rest of the motion in my Democrat amendments. I hope that in the short time allowed the chamber will consider those amendments favourably.

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

The point made by Senator Stott Despoja is one that was in my mind as I wrote this amendment in the forced atmosphere of this legislation being dumped on the parliament with unnecessary haste and speed, and without the due diligence that we should be bringing to it. But that is part of government control of the Senate. The executive and Prime Minister John Howard say, ‘Put that legislation through,’ and it goes through. We sat late last night for no good reason whatsoever.

The Senate is now being abused almost on a daily basis by Prime Minister Howard’s executive. We even found yesterday afternoon that, with a major environmental matter being discussed before the Senate, the minister for the environment was not here, because there was a cabinet meeting on—a cabinet meeting while both houses of parliament are sitting. There were no ministers, presumably, in either house because the Prime Minister says: ‘Parliament does not matter any more. It is what I, my executive and my ministers do that runs this country. The elected parliament of the people does not matter. It is out.’

We are well on our way to a dictatorship of the executive. In fact, we are at a dictatorship of the executive. We are not on the way, we are there. The parliament is being treated with utter contempt by the Rt Hon. the Prime Minister John Howard as he deals with the decision-making process in his rooms. He just says to his ministers and minions: ‘Get on with it. Change the sittings of the Senate. Reduce them to the minimum’—and we are reduced to the minimum—‘but extend the length of the sitting’—so we sat last night rather than having another week’s sitting—‘and then guillotine any debate that gets long so that we can get out of here and not have the government under scrutiny.’

They are the circumstances under which the real opposition, which is here on the crossbench, is working. Labor are supporting this extraordinary piece of legislation, which erodes so many civil liberties in Australia. The real opposition here on the crossbenches is left rapidly trying to write amendments which would bring sanity into the imprudent, to say the least, legislation that we are dealing with.

I put that amendment there, Senator Stott Despoja, through you Madam Temporary Chair, simply to point out that this is not just about terrorism or murder. This is about a whole range of issues on which government snoops can now phone tap innocent people’s lines, record the greatest intimacies between innocent Australian citizens and in the process come up with charges on crimes or potential crimes that are of a minor nature and which were never ostensibly in the view of the people voting for them. The government and the opposition will vote for this. It can be used, for example, to examine people’s taxation records. Totally unbeknownst to the citizen, a conversation between an innocent person and somebody who is a suspect being investigated by the tax department can be recorded and investigated by the snoops in the backroom. That can be kept on record or further charges can come out of it. I seek leave to remove subclause (2)(a) from my amendment.

Leave granted.

The point is that we now revert to the catch all, where there is an enormous amount unlisted. There is nothing from the government or the opposition supporting this legislation to say where the line is drawn. What is the guidance? In this unprecedented legislation, which cuts right across time honoured freedoms in our great Australian democracy, what crimes are we seeking to arraign private citizens for that allow snooping on their phone lines and intimate conversations?

I quoted from an essay last night which involved the very incisive legal mind of Mr George Williams. I want to quote from his Saturday essay, which was in the Age last weekend—just a part of it; we should incorporate the whole into Hansard—and I recommend it to senators. He says:

Unfortunately, new laws have been made with such haste—

he is talking about this sort of law—

that a careful assessment of where we already stand has been impossible. The laws passed after the London bombings were enacted so quickly that they have come into force before two continuing inquiries into the effectiveness of our existing laws can report. Before the 2005 attack, neither the Government nor its key agencies were putting the case for change to the law or an expansion of their powers, yet after the bombings the pressure for this proved irresistible.

The cycle of an attack followed by a new law is dangerous. Driven by fear and the need to act, we run the risk of a series of overreactions. This is the dynamic that terrorists rely upon. By our own actions, we may isolate and ostracise members of our community, who instead of helping intelligence-gathering may be susceptible targets for terrorist recruitment. Through our over-reactions and short-term thinking, we may actually make ourselves more vulnerable to terrorist attack.

Later in that essay, Mr Williams said:

It is natural that our fears will lead us to do all that we can to protect ourselves and our families, especially in response to a faceless and unknown threat such as terrorism. With a recent poll finding that more than two-thirds of Australians believe the terrorists will strike ‘before too long’ and that a terrorist attack in this country is inevitable, it is not surprising that there is great pressure to enact new laws at any cost.

What we need is leaders who, rather than playing to our fears, help us to understand that we must accept a level of risk of terrorist attack. There is no other option. If we strive for the illusory goal of full protection from terrorism, we risk doing even greater damage to our society and its freedoms and values. This will also warp political debate, policy choices and resource allocation in ways that cannot be justified—

witness this truncated and ill-informed debate today in the Senate. Mr Williams says:

We risk repeating these same mistakes if we do not change course. Unfortunately, there is no current sign that this will occur. New attacks will lead to new laws that will further erode our fundamental freedoms, increase fear and anger in parts of the community and make the problem more intractable.

It seems likely that in the past 4½ years we have seen only the beginning of the ‘war on terror’. The laws we have today were unthinkable before September 11. It is equally hard to imagine the laws that we will end up with in the event of future attacks.

Today we have laws coming through that are not a result of an attack, but they will result in a widespread attack on liberties and privacy, which are fundamental to a healthy democracy and which Australians have taken for granted. They can no longer take it for granted. This legislation allows a whole array of government snoops to move into the privacy of communications between innocent Australians, on innocent Australians. We will see the government turn down every amendment to put a check on that.

We have the Howard government, this Liberal government, which should stand for individual liberties—and what is more important there than the right to privacy?—attacking them, eroding and corroding them and giving powers to faceless people. There are not dozens of them but hundreds of them, in an increasing array of bureaucracies way beyond just ASIO and the Australian Federal Police, who will be able to at the behest of an Attorney-General, including Mr Ruddock, the current Attorney, gain information from the calls of innocent Australians who felt they were free from this sort of move towards police-state surveillance.

We, unusually amongst the community of older democracies, have no bill of rights. We have got no guarantee in our constitution at all, unlike the Americans, the British or the Germans. We are vulnerable, and this Howard executive, which has sidelined parliament, is going for broke. The minister might like to say what the government thinks about a bill of rights and responsibilities in this country and what its argument for refusing to entertain such an idea is. It is such a dangerous time for democracy—and I do not mean danger at the behest of terrorists; I mean danger at the behest of an authoritarian executive as we have now in the Howard government. We have the Greens and Democrats defending long-held liberal ideals, long-held rights of Australians to know that their privacy is not being invaded by governments with people in backrooms with recordings of their intimate conversations without them knowing about it, without them ever knowing about it and without accountability for that.

On the matter of safeguards, if you look at yesterday’s report to the parliament about the requirement for warrants in such matters and the approach from the Australian Federal Police and others to those who issue warrants you will find that out of some 250 requests not one was turned down. Who knows about that? Who knows the argument when an approach for a warrant in secret—of course, it has to be—is made? There is no counterargument. There is no defence in that system.

Here we are expanding that capability enormously. It is very dangerous legislation because it is not limited, because it throws the net so wide and because no Australian, no matter how innocent they might be, is outside the reach of this snoop legislation. My motion on behalf of the Greens tests the water on it. It simply says: let us see if we cannot have doctor-patient relationships and lawyer-client relationships protected from this snooping. Let us see what the government has to say about the vulnerability of members of parliament and High Court and Federal Court judges to having their phones tapped under this legislation. Let the minister explain to the Senate under what circumstances their phones might be tapped in this new era, when nobody at all is invulnerable to the creeping invasion of privacy which is inherent in this legislation.

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

At the outset, can I say in relation to the question put by Senator Stott Despoja that (2)(a) of the Greens’ amendment would have narrowed greatly the application of this bill. That has now been withdrawn. It was a sensible move by Senator Brown. Even on a cursory reading one could see that a simple assertion to limit the interception of communications in those circumstances would have meant very much narrowing the application of the act. It is very simple; it is very straightforward. I am surprised that that was included. Anyway, it has been withdrawn and I recognise that. I found it quite surprising that it was in the proposed amendment.

There are other aspects to this which I need to comment on, and they are in relation to the question of whether federal and state members of parliament, High Court judges, Federal Court judges and people in other areas should be subject to the interception of communications. The Greens say they should not be. It is very difficult for law enforcement agencies to guess what they might or might not come across in an interception. When you intercept telecommunications, you do not know what lies ahead. This was recognised in the case of Carmody and MacKellar, a decision of the full bench of the Federal Court which was cited by the Attorney-General’s officials before the Senate Legal and Constitutional Legislation Committee. It basically puts the proposition that you allow the interceptions to take place, within legal requirements, of course, but it is then for the court to determine the admissibility or otherwise of that evidence. That is how our system works. If you have legal professional privilege, that could be grounds for counsel to object to that evidence being adduced in relation to a court proceeding. The court then determines that you are right and that that should not be admitted, and it is not.

It is up to the court to determine what evidence should be admitted or not. If you say to law enforcement agencies: ‘You can’t even go to the first step of investigation,’ then you are going to limit law enforcement greatly. In fact, we are dealing here with particularly serious offences, such as possible sex trafficking and trafficking in narcotics, which would have been excluded by (2)(a) if it had been left in by the Greens. That is why you have to give law enforcement agencies the ability to have this interception power, particularly in relation to counter-terrorism. It is very difficult, in fact impossible, to put upon law enforcement agencies the ability to say: ‘If I intercept this communication it will involve one of these exclusionary areas. Therefore, I shouldn’t do it.’

The other aspect of this which the government do not agree with is that we should exclude federal and state members of parliament from scrutiny. We believe that all Australians are equal before the law and all can be subject to investigation by law enforcement equally. Politicians should not be exempt. If Senator Brown is saying that the individual has to be protected against the state, we would say that all individuals are equal before the state. If you are a federal or state member of parliament, you are subject to the same aspects of legal investigation as anybody else. The same applies to a High Court judge or Federal Court judge. We have seen in the past that, unfortunately, members of parliament and judges have been found guilty of offences. I think that that vindicates the position that the government are taking. No-one in Australia should be exempt from investigation in such a manner as proposed in this amendment. That strikes at the very heart of the rule of law in this country.

As for the International Covenant on Civil and Political Rights, the government are firmly of the view that this bill accords with our international obligations. We have had in place now for some time interception regimes in relation to law enforcement. In fact, it is widely accepted by Australians across the country that, provided that there are legal requirements in place and they are met, there should be the ability for law enforcement agencies to have these interception powers. Senator Brown said that this was in some way a knee-jerk reaction. That was the implication of what he was saying with reference to Professor Williams and it has been his approach to this debate in general.

This interception bill had its genesis, as I said yesterday, in 2004 when we looked at the Telecommunications (Interception) Act. After committee scrutiny, it was said that stored communications needed to be looked at. In fact, I mention again that there was view, much publicised by the AFP and AGD, about a different approach to this issue. Much was made of it. There was much debate. There was parliamentary committee scrutiny at the time and there was a bill that canvassed telecommunications interception at that time. We commissioned the Blunn report in the interim. Over those intervening two years much has been done in relation to the question of modern technology and telecommunications interception.

The Senate committee handed down a report, which we have responded to. We have adopted some of its recommendations and, as I have said, the Attorney-General will continue to consider some of its other recommendations. It is bit much for the Greens to come in here and say that there has been no debate on it and that this is a knee-jerk reaction. Senator Brown has also been forced to admit that he made a mistake in his proposed amendment.

I could ask Senator Brown whether he attended any of the Senate Legal and Constitutional Legislation Committee hearings on this. I know what the answer would be: no. As I understand it, although Senator Brown and his colleagues in the Greens are participating members, not one of them attended the hearings of this committee to have any input into the report to this parliament on what he says is a very important bill. When he comes in here and puts forward all these platitudes about the protection of the individual and about the fact that this is a knee-jerk reaction, let us look at and reflect on what contribution the Greens made to this report.

The government has looked at this report and acknowledged that it is a good piece of work. We have adopted some of its recommendations and will continue to consider some of its other recommendations. If I am to compare, Senator Stott Despoja was at the hearings and wrote a dissenting report. Indeed, Senator Ludwig was there and contributed greatly to the Senate report. I want to place that on record so that those listening understand the background to this debate.

The government does not agree with the proposals put by the Democrats. The opposition has put forward proposed amendments which reflect the recommendations made by the committee which we have not adopted. We have said that we will continue to look at those recommendations. But at least we have had some contribution—in fact, a good deal of contribution—from the Democrats and the opposition in relation to the writing of this report by the Senate Legal and Constitutional Legislation Committee. Senator Brown says that he has been robbed of a chance to provide input, but he is a participating member and he had every chance to go to those committee hearings.

This amendment by the Greens is flawed on a number of counts. We have seen how flawed it is by the fact that Senator Brown has had to withdraw paragraph (2)(a), which narrowed greatly the effect of this bill. This bill conforms with our international obligations, and therefore the first part of Senator Brown’s amendment is unnecessary. The other part of Senator Brown’s amendment, which we oppose vigorously, purports to exempt certain Australians from any investigation under the interception regime which is being proposed. We believe that all Australians are equal under the law and should all be subject to the same investigative capacity by law enforcement, especially when you are dealing with serious criminal offences and terrorism. For those reasons, the government opposes the amendment moved by the Greens.

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

I have only a couple of quick comments in respect of this. Senator Brown again sends a barb across to Labor. Labor indicated its position in respect of this bill very early on. It engaged in the process. It in fact engaged way back in 2002, because this had its genesis in us looking at stored communications and the problems of how you deal with SMS and email in the modern technological era we find ourselves in.

In fact, Labor have been intimately involved in all the committee hearings from 2002 until now, and we have sought to make recommendations in the committees and to move amendments in here to make sure that this government does not get away with tipping the balance towards law enforcement agencies. We have sought to make sure that there are reasoned and sensible arguments put forward as to why recommendations should be adopted and amendments made to give effect to those recommendations. Labor has been there throughout that whole debate.

I am not going to argue about whether the Greens have or have not been involved in the debate—it is not my place to do that. We are here to argue for our recommendations and to indicate why we will not support the Greens amendment. The Greens amendment, quite frankly, was not a matter that was properly examined by the committee; it was not brought to the committee for it to have a look it. Unfortunately, the amendment goes much further than the bill does. What it purports to do is, as Senator Ellison said, put politicians above the law. That is not something that Labor supports. We do not want to do that; neither do we want to put High Court judges or Federal Court judges above the law, for that matter.

The amendment also winds back the clock in terms of telecommunications interception legislation. Perhaps it might be clearer if Senator Brown had indicated right from the start that his problem is that he does not agree with telecommunications interception legislation. I understand the position that you might adopt in respect of that. It is not a position that Labor adopts, but I can understand why the Greens might adopt that position.

There is a balance to be struck here involving privacy. Essentially, this is privacy legislation; that is what it is about. There is a balance to be struck between privacy concerns and ensuring that law enforcement agencies have sufficient powers—but not more than is necessary—so that they can fight drug traffickers and the rest. Senator Brown says that the amendment is a protection that is needed. However, this protection goes further than simply covering what is in this bill; it goes to the whole of the telecommunications legislation. He wants to provide those sorts of protections over the whole telecommunications interception regime. The committee did not have an opportunity to examine that.

Senator Brown, if you want to continue with that view, there will be an opportunity in the review of the telecommunications interception legislation for you to put your position articulately and clearly. Blunn indicated that this is a matter that is not going to rest here. There is going to be further opportunity to debate these issues, and I look forward to your view as to how those matters should be dealt with, rather than moving an amendment here that seeks to cut across the whole of the telecommunications interception regime without, I think, reasoned thought or argument as to why these provisions should be supported.

I understand that you might want to rely on an opinion piece in an essay by Professor Williams, which is a very good essay, quite frankly. In the committee process, we relied on his written submissions and the evidence that he gave, which was extraordinarily helpful. In fact, the recommendations that he made, I think, found their way into the committee’s recommendations and subsequently into amendments. They may be in a slightly different form but, effectively, the gist of those matters is in Labor’s amendments because we wanted to ensure that the bill strikes the right balance—and Labor are keen to ensure that that occurs. Senator Brown, I am not so sure that you are here to participate in that process.

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

What a poor response from the Labor Party as it moves on to support this Howard government legislation, which breaches a century of protection of privacy as expected by Australian citizens. One would have thought that the Labor Party in opposition would be in here to question the government about where the lines are drawn on this snooping and invasion on innocent Australians, which is now so open for exploitation under this legislation. But, no, it gets into that attack on the Greens, who are doing its job for it. I am not going to resile from this responsibility for opposition for one minute, not at all.

The Labor Party cavils with the amendments that the Greens have put forward, but there is no other way of tackling this government apart from seeking to see where the boundaries are. I have no concern about politicians and judges being treated as every other citizen. What I am saying is that other citizens should not have their privacy invaded, as under this legislation, without enormous restraint put on that legislation. The restraint is not there and the Labor Party says, ‘Okay’. As is so typical, this Beazley opposition wants to align itself with the Howard government time and time again on matters to do with security simply because it is frightened of being pointed to as being soft, when in fact it should have the gumption to be strong on standing up for the hard-fought-for rights that are essential to a functioning democracy. Those rights are under attack and are being rapidly eroded. We have to ask ourselves in this country: is it not time for a bill of rights? We have to ask ourselves: where is the Labor Party nationally on that matter? It never introduced one during its 13 years of office before the Howard government came to power, and it is not about to introduce one now.

The reality is that we do need safeguards for ordinary citizens. I am not talking about criminals here; I am talking about ordinary citizens, law-abiding, innocent citizens. There is extraordinary reach to legislation aimed at drug runners, terrorists and massive tax evaders. Let us hope that includes those who take their assets offshore to escape paying tax—some of the big friends of the government are included there. Ordinary citizens should not be treated in the same way.

What we are learning here is—and I think this is new territory—that politicians and High Court judges can be snooped on now by not just ASIO but a growing range of instrumentalities with fewer and fewer restrictions and guidelines and with less and less prohibition on them crossing the line into gratuitous, unnecessary and destructive invasion of innocent citizens’ privacy. That is what the Labor Party should be standing up for. That is what it is failing to stand up for as it votes for this legislation. It might hurt about that. It might want to point the finger at the Greens and say: ‘You’re falling into the trap of being exposed to government criticism. We would never do that.’

We are here to provide the opposition for the citizens of this country because their families, their workplaces, all their communications, their mobile phones, their SMSs and their computers are now open to invasion. I am talking about innocent Australians. We are here to defend their right not to have their intimate communications passed around in the backrooms of intelligence agencies, tax agencies, police agencies, quarantine agencies and a whole stack of other agencies under this legislation. Labor might not care about that or be too fussed about this enormous erosion that is occurring with this legislation in regard to people’s right to privacy, but we do.

I put up this amendment knowing it was going to fail. It is a blunt instrument. The minister says, ‘Senator Brown, you weren’t at the one-day inquiry into this matter.’ No, I was not, because I was representing my constituency, in the inevitable competition for time you have as a seven-day a week, seven-night a week senator. I was defending my constituency’s interests elsewhere. It is terrible when you only get a one-day inquiry in one city on a matter like this that affects all Australians. That is part of the attitude of this high-handed government and this minister—they say they will have an inquiry, and it is in fact a farce. It is not like the Senate inquiries of the past. This is the age of Senate sidelining by the government.

That inquiry did enable some light to be shed on this bill, but it was almost wall-to-wall critical. The minister might like to get up and say, ‘Who came to the inquiry to defend it?’ The users of the bill did. But I challenge the minister to get up and say, ‘Which community organisations of this great country of Australia defended this legislation?’ The answer to that is none, not one, not a solitary organisation representing civil society against the incursion by this legislation on the rights to privacy of Australians.

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

Chair, you have heard me outline the Democrat view on this amendment and draw the Senate’s attention to our concerns with (2)(a), which has since been withdrawn. I just want to emphasise the issue of legal professional privilege. Senator Brown’s course of action is to deal with the issue of exception or exemption, something with which the major parties obviously have a problem. Based on the evidence presented to the inquiry, specifically by Professor Williams, I am inclined to think that an exception approach is one way of dealing with the issue of legal professional privilege. I am not sure about the other professional privileges that we have talked about and that were dealt with during the committee hearings.

I suspect the other way, and this is what I have sought to do with my amendments, is, as the minister has mentioned, to deal with the issue of admissibility and obviously ensure in the first place that the issuing authority considers the issue of legal professional privilege. Colleagues in the chamber will see, looking at (3), (5) and (10) of my amendments, that we deal with issue of admissibility and also with the issue of punitive sanctions as a consequence of failing to acknowledge the importance of legal professional privilege.

There may be some issues with the amendment before us. Senator Brown describes it as a blunt instrument. But I do want to emphasise that, while I have had concerns about how this amendment is drafted, I do support the intent behind it. I do have difficulties with the notion that somehow we are above the law, whether we are state or federal members of parliament or indeed judges, but I do think the reference to those particular professions is intended to jog everyone’s memories. I can hear a baby crying. That is okay; it is not mine. That is all good. We are reminding people that this is serious legislation in terms of what conversations or communications can be intercepted, stored and used for other, shall we say, crime-fighting purposes—that is, what evidence can be collected for other purposes. I think that it is important that people recognise that those professional privileges and specifically legal professional privilege, I believe, should be protected more than the current act provides. In that respect I am supportive of that notion and have sought to do it in a different way.

I have made my comments on the international treaties. I would say, though, to Senator Brown that I think that there are probably varying views on a bill of rights or a human rights act in this place. But I remind him that, I believe, Gareth Evans and Lionel Bowen drafted a human rights act or a bill of rights. I am looking to Labor here for some guidance. It passed the lower house in 1985 and I think it was withdrawn in 1986. The Labor Party has an interesting history when it comes to a human rights act or a bill of rights. I will not take away from Lionel Murphy’s efforts in his 1973 bill of rights. The Labor Party does have a history in that regard.

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

It’s ancient history.

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

It is ancient history; that is right. I take that interjection. But I want to put this on record. I am a late convert to the notion of a bill of rights, and it is partly because I think that legislation is becoming increasingly invasive and having an impact on the human rights and civil liberties of Australians. It is understandable to have a free kick at Labor. I enjoy having a free kick at Labor occasionally. But I do acknowledge that there is a history and I would not take away from the history of the Murphys and the Evanses their work on a bill of rights.

On that tangent, I think I have made clear some of the concerns that we have with this amendment but I understand the intent behind it. I commend the Democrat amendments that seek, perhaps in a different way, to address this issue of legal professional privilege, enshrine it and ensure that issuing authorities are conscious of it and have consideration of it. That is the way that we have preferred to approach the issue of admissibility.

Question negatived.

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

I seek leave to move opposition amendments (2), (3) and (12), on sheet 4882, together.

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

The vote will have to be taken separately because a different question is put on amendment (12). But the debate can be cognate.

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

The matters will have to be put separately.

Ross Lightfoot (WA, Liberal Party) Share this | Link to this | Hansard source

We will put them separately, but you may speak to the three.

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

by leave—I move:

(2)    Schedule 1, page 4 (line 2) to page 61 (line 11), omit “enforcement agency” (wherever occurring), substitute “interception agency”.

(3)   Schedule 1, item 2, page 4 (line 18), before “law”, insert “criminal”.

We also oppose schedule 1 in the following terms:

(12)  Schedule 1, item 36, page 48 (lines 5 to 9), TO BE OPPOSED.

The debate on this revolves around the same issue. If you look at recommendations (2), (3) and (5) of the Senate Legal and Constitutional Legislation Committee, I think they are germane to the particular issue. Unlike Senator Bob Brown’s amendment, these amendments are designed to progress the committee report and achieve a better outcome for the safeguards that Labor is here to protect. Senator Brown’s amendment was quite a spray, quite frankly. I was not going to answer much of it because I took for what it was: simply a stunt.

The committee believed that access to stored communication warrants should not be available to all agencies, as is spelt out in the legislation, because in that instance the extension strikes the wrong balance between individual privacy and effective law enforcement. The committee and Labor argue that at this point in the program, given the long history of this, stored communication should remain with law enforcement agencies.

Senator Brown would not have heard the argument from ASIC—the Australian Securities and Investments Commission. Apparently he does not want to. They wanted to use stored communication warrants for notices to produce. I think that argument should be expelled. It has the wrong emphasis. What they were arguing for during that part was that you could use covert—although they took exception to that word, I must say—stored communication warrants as notices to produce. I just do not think that is acceptable. When you look at their practices, you see that they had been using notices to produce to access stored communication—that is, SMSs and emails. They had not utilised a covert notice to produce in the last 12 months. It is not a power that would add to their array of law enforcement or civil enforcement activities in the area of their work. Therefore, to me and to the committee, it seems to be an unnecessary extension at this time.

Of course, the key distinction that we have to focus on is between covert and overt searches. The principal test should be the impact on individual privacy. The bill would result in a significant number of government agencies being able to covertly obtain material and, further, the proposed system would allow access to stored communication warrants for a range of sometimes relatively minor offences. So a wider range of agencies—those outside what we would regard as the law enforcement agencies: the AFP, the ACC and ASIO—would have the ability to utilise covert access to stored communication. We think that goes too far. It was not sufficiently justified by the agencies or by the submissions by the Attorney-General’s Department. I do not think the need for it was well argued by them.

The information that they seek to obtain from emails can be obtained from notices to produce, ordinary search warrants and the like for agencies. I think the agencies were just throwing their hat in to see if they could gain a covert power. It was not and is not necessary. These amendments will give effect to ensuring that that power is not in the legislation. It was for a range of otherwise minor offences which could be civil in nature, and therefore you would expect that, if they wanted to obtain and enforce that, they could do it in the ordinary way. They can use notices to produce and search warrants to obtain the evidence in that way and enforce the civil proceedings in the usual manner without covert access to stored communication at an internet service provider.

The view of the committee was that the invasion of privacy did not warrant an extension beyond core law enforcement agencies. Stored communication warrants should be limited to criminal offences. I think that provides the right balance. As I have said, other agencies can continue to use notices to produce. From the evidence given to the committee, there was not an apparent diminution of their ability to use the legislation to deal with their enforcement activities.

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

Briefly, as Senator Ludwig has pointed out, these matters were raised in the committee. Indeed, the majority report came up with recommendations that the amendments pick up. For that reason alone, I would hope that the government would give the recommendations and the amendments serious consideration. I remind members, senators and the public that the recommendations were from a majority committee report—that is, the chair’s report, which was endorsed by coalition members as well as Labor members of the committee.

As I have indicated previously, the Democrats support the recommendations in the chair’s report because we believe that they perhaps ameliorate some of the worst aspects of the legislation. Particularly in light of the good work of the chair of this committee, I would hope that the government would view these amendments in a positive light. As I have said, the Democrats believe that additional amendments and, thus, additional recommendations are required. We believe that Labor amendment (2) is an important amendment because it restricts the number of agencies that will have access to the stored communication warrants to that which the bill currently allows, which is a number of state and Commonwealth statutory bodies. We are restricting that to enforcement agencies. That was discussed and recommended. It has privacy and, obviously, other accountability implications. It is a good amendment. We are dealing with the amendments cognately now but, as Senator Ludwig has indicated, we will vote on them separately.

Similarly, we support opposition amendment (12), which stops agencies other than enforcement agencies having access to stored communications warrants. Finally, amendment (3), to insert the word ‘criminal’ into the definition of a ‘serious contravention’, has the impact of specifying that the law is in relation to criminal law only. This may not necessarily be required, as the punishment provisions and definition of proscribed offences et cetera deal with this issue. But, clearly, the intent of this amendment is to isolate stored communications to criminal matters only and, as such, removes any reference to pecuniary penalties. For the reasons that Senator Ludwig outlined, we support that amendment also. So the Democrats will be supporting the Labor amendments before us.

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

These three amendments proposed by the opposition purport to limit the agencies that would have access to the stored communications interception regime. I think that what we have to look at is the sort of material that we are accessing here. We are not saying that the ACCC, ASIC or the Australian Taxation Office, or Customs for that matter, should be able to intercept communications. What we are saying is that they should be able to access documents which are stored electronically—documents which previously would have been found in a filing cabinet and been accessible by those agencies under different warrant regimes under the law.

So we are saying that, where you have a stored communication, it is much like a document. An email, for instance, really is a letter that has been transmitted electronically, and I think a lot of people fail to realise that these days. Much of Australia’s litigation today, and prosecutions, involve at some point along the line the introduction into evidence of an email. Many people, I think, treat it much as a telephone call rather than a letter. What we are saying is that, where today’s prosecutions involve that sort of stored communication, these agencies should have access to it. We do not believe that it is unduly expanding the interception regime, because we are not saying that they can intercept telephone calls.

I can give you some examples. The ACCC, in dealing with cartels and any offence which would relate to cartels—where more than three years imprisonment is involved—would need to have access to this sort of information if it were to found a prosecution. It is similar for ASIC with corporate prosecutions, and indeed there has been much publicity about those in recent years in Australia. The Customs Service, involved in very serious issues, would need to have access to this sort of stored communication. In the case of the Australian tax office, as evidenced by Operation Wickenby, which is currently under way—I will not go into the details, but it is public information that it involves alleged massive tax evasion—one can only imagine that the ATO would need to rely on the evidence of stored communications.

In many investigations today, you see the seizure of information held on computers as forming the basis for prosecutions of serious offences. That is why it is essential that these agencies be allowed to have access to stored communications. Certainly, interim arrangements that we have had in place have allowed these agencies that access—and we are not saying that, just because it has been in place, we should necessarily continue it. The reason is that the environment is changing and, instead of seizing documents in a filing cabinet, you are now seizing information which is stored electronically. This ability has to be extended to agencies such as the ACCC, the ATO, ASIC and others, because they are very much involved in law enforcement and they need to have the power to intercept stored communications.

I appreciate the committee’s comments in relation to this and I have looked at those comments. The Attorney has said that, of course, we will continue to consider the committee’s recommendations, but we feel that at this point we have to maintain the current interim regime, for the reasons I have mentioned.

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

I will be brief. Senator Ellison makes a case for a stored communications regime. Labor support a stored communications regime. What we do not support is the agencies outside the core law enforcement agencies being able to access stored communications covertly. That is the word, ‘covertly’—in other words, directly to the ISP without the knowledge of the intended recipient. Those other agencies have the ability, and will continue to have the ability, to access computers, emails and software with the knowledge of the recipient. It is the ‘covert’ point which is the point of difference here between the coalition and Labor arguments. Labor say that the coalition’s position strikes the wrong balance. Labor say that our position, reflected in our amendments, effectively ensures that the privacy protections are there and the balance is there, as the committee found.

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

The question is that opposition amendments (2) and (3) be agreed to.

Question negatived.

The Temporary Chairman:

The question now is that schedule 1, item 36 stand as printed.

Question agreed to.

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

I move government amendment (2) on sheet PA337:

(2)    Schedule 1, item 1, page 4 (lines 5 to 13), omit the item, substitute:

1 Subsection 5(1)

Insert:

stored communication means a communication that:

             (a)    is not passing over a telecommunications system; and

             (b)    is held on equipment that is operated by, and is in the possession of, a carrier; and

             (c)    cannot be accessed on that equipment, by a person who is not a party to the communication, without the assistance of an employee of the carrier.

Amendment (2) amends the meaning of ‘stored communication’ to clarify that a stored communication warrant only applies where a law enforcement agency seeks access to a communication with the assistance of an employee of the telecommunications carrier. This amendment provides certainty to law enforcement and security agencies and telecommunications industry participants alike and responds to issues raised during the Senate committee consideration of the bill. I commend the amendment to the committee.

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

As I understand it, it was a matter that did need repairing. I think it demonstrates—and I made this point last night—that some of these would have been picked up through a better process if this government had adopted a better way of going through the legislation. It has done that in the past. It did it in the years when I was on other committees. It seems to have changed its tune since 1 July. It promised it was not going to change its tune when it got control of the Senate. I think this again demonstrates that it has in fact changed its tune. It now treats the committee process as a way of facilitating the debate in here—or perhaps not facilitating it at all—and using this place as a sausage machine.

I complained about it last night. I promised I was not going to complain about it again, but it is a new day and I thought a new complaint would not hurt. But I will not complain again today about this. The point needs to be made that, with a constructive opposition and an accountable government, you would end up with a much better outcome and we would be in a position where we could ensure that those unintended consequences—the slips and the mistakes—were all fixed up and we could agree to move on. We could perhaps have an argument on principle and policy differentiation rather than arguing where, in many respects, with a bit more energy and a bit more effort we could improve the operation of this bill. This bill does need improvement. It does fall short. The government knows that. The government knows it is ramming it through. It should pick up the amendments that the committee made. It is not going to, clearly, and that is a disappointment. But this amendment relates to a minor procedural matter and the opposition supports it.

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

Ditto. The Australian Democrats will be supporting this necessary clarification to the definition of ‘stored communications’. I totally agree with what Senator Ludwig said. We had a complaint last night about the process. The government does give us grounds for a perpetual whinge. It is not an isolated incident. I would suggest to Senator Ludwig that in fact the Senate committee inquiry is being used as a de facto committee stage and is designed to truncate some of the discussions that we should be having in this place. I once again record my concerns. I wish the government were picking up more of the recommendations contained in the Senate committee report.

Question agreed to.

I move Democrat amendment (1) on sheet 4869:

(1)    Schedule 1, item 2, page 4 (line 23), omit “3”, substitute “7”.

On behalf of the Australian Democrats, I have just moved the first of a number of amendments to try not only to encapsulate the gist of some of the Senate inquiry issues and submissions but indeed to encapsulate the recommendations that we have moved through our supplementary report with additional comments of dissent. The amendment is intended to raise the threshold for access to a stored communications warrant from imprisonment for a three-year period to imprisonment for a period of seven years.

Those who of us who were involved in the committee will know that there was a bit of a debate about the differential thresholds. The Australian Democrats maintain that the differences are a little spurious. We are not at all convinced by the argument that voicemail, SMS or email is less private or in some way less confidential because it has been more considered or more thought out. I am not sure about some of the SMSs that people are sending around this place—and I am not quite sure why Senator Johnston is laughing so much. Maybe I have touched on something!

As such, the Democrats believe that stored communications warrants should not be treated differently from an interception warrant which deals with live communications. There was evidence given to the committee in relation to this issue. As those who attended the committee would be aware, I asked a number of witnesses about their views on the differential treatment in relation to the differing thresholds for interception warrants and stored communications warrants. The Attorney-General’s Department, some officers of which are here today, will remember that I asked during that inquiry about the rationale for those different thresholds for stored communications and interception warrants, again relating to the notion that emails and SMSs are more considered than a live communication. I asked about that rationale, and one of the responses was:

It is something that is in writing—something that definitely involves more consideration of the expression—although there is the speed issue.

I think that rationale may be a little outdated, and certainly it is somewhat unconvincing. I will quote from Professor Williams. As we have heard in this debate, he provided written and verbal submissions to the inquiry. I believe I asked him about it. He said:

It strikes me as nonsensical that a differentiation would be drawn between speaking to somebody on a mobile phone and sending them an SMS message. Many of the students whom I teach today see them as equivalent forms of communication. It makes no sense as a matter of law or public policy why, indeed, it is easier to gain one type of information than the other.

He then said:

I think the proper focus for assessing this legislation is: what is the appropriate limitation upon the privacy of Australian people? For them there is no rational distinction, so I cannot see how you could justify one from the government’s end.

I do think that we need to change the thresholds. The attempt of this amendment—by increasing the three years to seven years—is to achieve parity between the two types of warrants. I think that if we did a vox pop of people in this parliament and on the street as to whether or not they consider that there is a difference between a so-called live communication and one that is written—and that includes SMS which I think is a fantastic medium—they would say it was quite a spurious claim that they are different and therefore one should be treated with more protection, privacy or confidentiality than the other—and, indeed, it is easier to obtain a warrant for one than another and there is a different threshold of imprisonment terms.

I commend this amendment to the Senate. I think it makes sense. Again, as Professor Williams stated in his response, the basic matter here is privacy protection for the Australian people. I also think that, as a matter of law, there are some important legal parities, if you like, that are not served by the bill in its current form. I commend the Democrat amendment and ask senators to support it.

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

Senator Stott Despoja will not be surprised that I am not supporting the amendment. There is some joy later on, though; I can see significant merit in some of the later amendments. One of the difficulties in this process—by way of explanation rather than complaint—is the argument about real-time and stored communication. This bill introduces a stored communication regime that came from Mr Blunn. He saw the matter as necessary, he put a distinction in and he then, in the independent review, came up with a regime that included this type of outcome. When you look at the sense of it, with SMSs, stored communication and emails the real difference that strikes you is that there is a point where you do not have to send it. There is a point where you do not have to press the button. There is a point—no matter how short or long—where you can reflect upon the message before you send it.

Unfortunately, with live communication, with voice, you cannot review it after you have said it and choose not to say it. It has been said. There is no point where you can press the button—although many a time in front of a journalist I suspect I might have wanted to do precisely that. There is no consideration; there is no seven-second delay that allows me to review it. Effectively, Mr Blunn was saying the regime would provide adequate protection of stored communication in the way that he proposed. With the committee’s recommendations, it would provide this. By not picking up all of the recommendations, I think that the government falls short of ensuring that the regime provides sufficient protection and a balance between protecting people’s privacy and effective law enforcement. I think that increasing imprisonment from three to seven years does not add that protection; supporting the recommendations of the committee does. This is a matter that got some consideration by the committee but is not one that Labor would sufficiently support. It was not recommended and therefore it does not find our favour. We will not be supporting it.

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

Certainly, the government does not agree with this amendment. Senator Ludwig has touched on some of the reasons on which the government has a similar view. I think that to compare stored communications with a communication that is taking place is somewhat unreal. To therefore say that stored communications need a higher threshold of offences, which attract a minimum seven-year penalty, is accordingly inappropriate.

I think that once a message or communication has been transmitted it is of a different nature to one that is in process. That is precisely what was acknowledged by Mr Blunn in his report when he acknowledged the difference between real-time interception and a communication that has been received. He recommended that the distinction between intercepting real-time communications and accessing stored communication be maintained. The bill maintains that, and I might just say that when you deal with the post, sending a letter through the mail, it is a written communication.

We have postal warrants, which can be obtained for the interception of mail. That letter is in a similar position to an email, which is a stored communication. It is different whilst it is being communicated, in that a person is speaking on the telephone or entering text into their computer and transmitting it. As Mr Blunn said, that difference has to be maintained. That is what this legislation does. We believe that the Democrats amendment places too much emphasis on the fact that stored communication is just as important as the communication in process. Three years is sufficient and affords law enforcement the opportunity to investigate serious offences and use the mechanisms that the bill provides.

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

I am not going to prolong this debate, but I am curious about the minister’s response. I acknowledge the Blunn report, but I am not suggesting that this is not a blurry area. I do not think it is immediately obvious or simple, but I do find it fascinating, and I would be curious to hear the minister’s response. He uses the example of a live communication—for example, having a telephone conversation or a discussion as we are now, juxtaposed with writing something down or pressing a button like ‘send’. However, doesn’t this issue become a bit more blurry when we are talking about the difference between picking up a phone and having a chat—such as, ‘Hello, Senator Ellison, I wanted to have a chat about the telecommunications interception bill’—and not actually getting through to the person but getting their voicemail?

I am trying to clarify whether there is a distinction. Do we treat differently the fact that I have not spoken to the minister but I have got through to his voicemail? Why would you treat that any differently? If I am wrong about that, I would like to have it checked. It may well be that people are much more adept when they leave a voicemail message, but I think all of us have been in the circumstance when we are caught off guard and think, ‘Gosh, it would’ve been easier to talk directly to this person.’ It is perhaps more challenging. I do not know. Maybe one is more considered and one is not. But doesn’t the fact that getting through would be treated one way and not getting through but leaving a recorded message would be treated another way seem ludicrous? That is just an example that comes to mind. I am curious to hear the minister’s response to that example.

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

I turn to Mr Blunn’s report, where he said:

As such, real-time access is akin to eavesdropping which was the comparison used by the then Attorney-General (Sir Garfield Barwick) when the Telephonic Communications Bill 1960 was introduced providing protection against unauthorised interception ...

Interception was then defined as ‘listening to or recording any communication in its passage over the telephone system’.

He went on to say:

Accordingly, I recommend that the distinction between intercepting real time communications and accessing ‘stored’ communications be maintained.

He did point out:

Increasingly much of the data ‘passing over’ the telecommunication system are not voice communications.  However it seems to me impractical and undesirable to suggest different regimes for real time access (i.e. interception) depending on whether the communication is voice or in some other form.

What he was getting at there was that intercepting someone in the process of making a communication—that is, they are on the phone or they are transmitting it—has to be treated differently to obtaining a communication that has been received, because a telecommunications interception is an ongoing warrant which is issued for 90 days, as I recall it. Intercepting that line—listening to the communications on that line—is an ongoing thing.

Stored communication is something different. That warrant allows you to intercept only that which has passed over the telecommunications system. It has been received. It is there as an item which has been received. It does not require a period of time with which to monitor it because it is not ongoing. The warrant simply lets you go in and intercept that aspect which has been received. It is at that point in time. It is fixed. It has been received, and it is in the past tense. The other warrant is very different. It is ongoing and you can listen to what is being done in real time. I think that Mr Blunn describes that well in his report, and that is why there is the difference between the two.

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

I understand the fact that they are being treated differently. I can even grapple, in this day and age where technology is changing and advancing all the time, with the technical distinction or rationale for that differential treatment. The thing that I do have a problem with and that I do think is a spurious rationale is the notion that one is more considered than the other. That is certainly an argument that has been put forward. In that respect, regardless of the rationale that is based on technological or other grounds, I think that in this day and age the notion that one is more considered than the other is increasingly spurious.

Having said that, I read the numbers in the chamber and I understand that this amendment will be lost. However, I do think that this is something—and I suspect the minister may even agree with me on this; I am not sure—that will be subject to continual discussion, review and debate, especially as technology advances at this extraordinary pace, because I think that in this day and age the notion that one is more considered than the other is not convincing.

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

The minister did not answer my earlier questions, so I ask: could a situation occur here under this legislation as happened under the analogous legislation in the United States, where a group called Food Not Bombs was targeted by the FBI?

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

Food?

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

Food Not Bombs—it serves vegetarian meals to homeless people. Could an organisation be wire-tapped or have their stored communications listened to? If not, what are the means to stop that happening—on the presumption that a case is put to somebody who arbitrates on a warrant that, through the very name of this organisation and some other allegations, they did deserve listening into? I mean, if the FBI can make that error, what is to stop it happening in Australia, where 250 out of 250 applications by the Australian Federal Police, for example, to intercept communications have been agreed to by warrant-issuing authorities?

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

I am not aware of the situation in the United States, so I cannot comment on the particular instance that Senator Brown has mentioned. However, I can say that our warrant regime has judicial oversight, and I stand by it.

Question negatived.

Progress reported.