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

I seek leave to incorporate my speech in Hansard.

Leave granted.

The speech read as follows—

I rise to support the Telecommunications (Interception and Access) Amendment Bill 2007.

The Bill will amend the Telecommunications (Interception and Access) Act 1979 (the TIA Act) to implement further recommendations from the Report on the Review of the Regulation of Access to Communications by Anthony Blunn AO (the Blunn Report).

The Telecommunications (Interception) Amendment Act 2006 implemented the first stage of the legislative amendments. This Bill will amend the TIA Act to transfer relevant provisions of the Telecommunications Act 1997 (the Telecommunications Act) to the TIA Act and will provide comprehensive and overriding legislation that regulates access to telecommunications data for national security and law enforcement purposes.

The report on the review of the regulation, the Blunn report, was tabled in parliament on 14 September 2005 and recommended that legislation dealing with access to telecommunications data for security and law enforcement purposes be established. The Blunn report included public submissions and consultations with security and law enforcement agencies, the telecommunications industry, privacy organisations and individuals. The Telecommunications (Interception) Amendment Act 2006 implemented the first stage of the legislative amendments.

The bill also contains a number of additional amendments to the operations of the existing TIA Act which Labor supports, including ensuring that interception warrants are available in relation to the investigation of any offence relating to child pornography regardless of the maximum term of imprisonment that may be imposed by state and territory criminal law; widening the definition of ‘exempt proceedings’ to allow disclosures for the purposes of proceedings in relation to the Spam Act 2003 and enabling the use of this evidence in court proceedings; implementing, in part, recommendation 24 of the Blunn report which recommended allowing access to the content of communications for the protection of data systems and the development of testing of new technologies; and a number of other minor amendments that generally improve operational efficiency.

The key purpose of schedule 1 in the bill is to transfer security and law enforcement provisions from parts 13, 14 and 15 of the Telecommunications Act to the TIA Act. Schedule 1, item 12 also inserts a new chapter 4, which deals with access to telecommunications data. The amendments establish a regime for particular officers of ASIO or an enforcement agency to lawfully authorise the disclosure of telecommunications data without breaching the general prohibitions on the disclosure of that data that exist within existing sections 276, 277 and 278 of the Telecommunications Act. The new chapter 4 transfers sections 282 and 283 of the Telecommunications Act to the TIA Act.

The basis for lawful access will depend on whether the authorising body is ASIO, a criminal law enforcement agency or an enforcement agency.

The new provisions distinguish between access to historical telecommunications data—that is, data which is already in existence at the time of the request—and prospective data—that is, data that is collected as it is created and forwarded to the agency in near real time. Access to prospective telecommunications data is only available to ASIO or criminal law enforcement agencies because of the high privacy applications of this type of access. The key amendments are contained in Part I.

Those amendments create a new two-tier access regime. The first tier encompasses the traditional access to existing telecommunications data. These agencies are defined as enforcement agencies.

The second tier, which would be limited to a narrower range of agencies—that is, the criminal law enforcement agencies—would require a higher threshold of authorisation, allowing for future access to telecommunications data, and that is covered in proposed sections 176 and 180. The need to distinguish between historical and prospective data is a reflection of the advances in technology which enable the use of telecommunications data to provide, amongst other things, location information.

To reflect the increased privacy implications of access to prospective data, three more restrictive conditions are attached to these authorisations: firstly, restricting the disclosure of prospective telecommunications data to an authorised officer of a criminal law enforcement agency for the investigation of offences which attract a maximum term of imprisonment of at least three years; secondly, limiting the time frame for which an authorisation may be enforced to 45 days for criminal law enforcement agencies, under proposed section 180, and 90 days for ASIO, under proposed section 176; and, thirdly, requiring the authorising officer to have regard to the impact of the authorisation on the privacy of the individual concerned.

The Bill also deals with voluntary disclosures of telecommunications data by employees of carriers or carriage service providers to ASIO and to enforcement agencies. These provisions make it clear that they only apply in the case of voluntary disclosures and that requests from agencies must be dealt with under proposed sections 175,176 and 178 through to 180.

There are certain safeguards set out in the bill in relation to access to telecommunications data: authorisations must be retained for a period of three years; the head of an enforcement agency must report on the number of authorisations to the minister on an annual basis; and this report must be tabled in the parliament. Transparency provisions of that kind are particularly important in matters like this.

The bill amends the Telecommunications Act by also inserting proposed section 306A. This provision is based on the existing record-keeping arrangements for the disclosure of historical telecommunications data. The proposed section provides for the records of prospective authorisations made under the TIA Act that are to be kept by carriers, carriage service providers and number database operators. The bill also provides for an offence for unlawful disclosure or use, including secondary use and disclosure, of telecommunications data.

Schedule 1, item 12, inserts a new chapter 5, which deals with cooperation with interception agencies. It requires carriers and carriage service providers to ensure that communications carried over the telecommunications systems are capable of being intercepted.

The bill deals with the obligation on carriers that the intercepted information is capable of being delivered to interception agencies from a delivery point. The Attorney-General’s office advised that, although the above arrangements already exist under the Telecommunications Act, they are being transferred to the TIA Act. The legislation will remain valid within the Telecommunications Act for a transitional period and will then be repealed, although the Attorney-General’s office have not yet specifically identified the length of that transitional period.

The Attorney-General may make written determinations on the interception capability of certain carriage services under proposed section 189. The new post of Communications Access Co-ordinator is defined by this bill. That person may grant exemptions to any interception capability obligation under proposed section 192. ACMA can also grant exemptions for trial services under proposed section 193. Carriers also have to prepare and submit an annual interception capability plan in accordance with the bill. The plans will now be lodged with the CAC rather than with ACMA.

The bill also inserts new item 12 in schedule 1, which states that various instruments are not legislative instruments. The Scrutiny of Bills Committee noted that, in each case, the explanatory memorandum states that the reason these exemptions are not legislative instruments is that the relevant documents contain sensitive and confidential information. For example, in respect of the instrument referred to in proposed section 192(4), the explanatory memorandum explains that, if the documents were not kept confidential, the limitations of interception capability and by implication how to avoid interception could become publicly apparent.

The Attorney-General has advised that the power to grant these exemptions is reviewable under the Administrative Decision (Judicial Review) Act 1977.

Schedule 2 amends the TIA Act to ensure that the list of serious offences for which interception warrants may be sought includes all child pornography offences, whether or not the penalty for such an offence is imprisonment for at least seven years. Child pornography offences are already defined as serious offences by the act but only where the maximum penalty is imprisonment for at least seven years.

In relation to the Spam Act, the TIA Act provides that interception material can be used as evidence in an exempt proceeding. Schedule 2, item 5 widens the definition of ‘exempt proceedings’ to allow disclosures for the purposes of proceedings in relation to the Spam Act 2003. This amendment is consistent with the intention of recommendation 17 of the Senate Standing Committee on Legal and Constitutional Affairs report on the bill.

The bill contains several amendments to partially implement recommendation 24 of the Blunn review, which recommended allowing access to the content of communications for the protection of data systems and the development or testing of new technologies. The bill will allow the Attorney-General to authorise interception for developing and testing capabilities, subject to conditions and only by security authority. A ‘security authority’ is defined in schedule 2, proposed section 3, subsection 5(1) as:

... an authority of the Commonwealth that has functions primarily relating to:

• security; or
• collection of foreign intelligence; or
• the defence of Australia; or
• the conduct of the Commonwealth’s international affairs.

The bill also contains provisions concerning the definition of ‘passing over the telecommunications system’ for the purpose of a computer network operated by or on behalf of the Australian Federal Police. People who operate, protect or maintain the network or are responsible for the enforcement of professional standards in the AFP are treated as intended recipients so that their monitoring of outbound and inbound communications is not unlawful. These provisions were inserted by the 2006 amendment and were subject to a two-year sunset clause. The Attorney-General’s office has advised that the two-year sunset clause will also apply to the proposed amendments inserted in this amended bill.

Items 11 and 12 would expand the number of agencies eligible for exemption under subsection 5F(2) and 5G(2) to cover Commonwealth agencies—that is, the Australian Commission for Law Enforcement Integrity and the Australian Crime Commission; security authorities—that is, ASIO, the Department of Defence and the Department of Foreign Affairs and Trade and eligible authorities of the states—and that would include integrity, crime commission and police forces, as well as the AFP, which is currently exempt. This amendment would increase the number of agencies which can monitor all outbound and inbound communications for the purposes of enforcing those professional standards.

The bill was reviewed by the Senate Standing Committee on Legal and Constitutional Affairs. The committee handed down its report on 1 August 2007 and made a number of recommendations. I will refer to some of those now. At paragraph 3.77 the committee recommended:

... that proposed paragraph 5(1)(m) of the Bill be deleted to remove CrimTrac from the definition of ‘enforcement agency’.

However, it is not proposed to move an amendment in relation to that. Whilst acknowledging that CrimTrac does not have the investigative powers of a traditional enforcement or security agency, we note that CrimTrac does play a vital specialist role in assisting law enforcement. It is for this reason that we think it should remain within the bill’s definition of an enforcement agency.

The committee also recommended that the Attorney-General’s Department arrange for an independent review of the operations of the Telecommunications (Interception and Access) Act 1979 within five years. The committee accepted the view of the government that it is unnecessary to amend the bill to require such a review. We support the bill.

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

I think I will follow Senator Ludwig’s lead. I also seek leave to incorporate my speech to this legislation in Hansard.

Leave granted.

The speech read as follows—

This Bill represents the second tranche of the Government’s response to the Blunn Review conducted in 2005. A key recommendation of the Blunn Review was to establish a single, consolidated piece of legislation which deals with access to telecommunications data for security and law enforcement purposes.

The Democrats consider that consolidation of security related legislation is a positive development. In a small way it may alleviate some of the problems that we have seen with the piecemeal development’ of the Government’s security related legislation in general.

That approach has cumulatively removed individual rights to the extent where even law enforcement agencies are ill-equipped to deal with their extraordinary powers, as was all too readily apparent with the Dr Haneef affair.

Several aspects of the Bill are largely uncontroversial and amount to little more than a transfer of existing provisions from the Telecommunications Act. Some aspects of the Bill go further and amount to an improvement to the existing regime. Under the Bill, voluntary disclosure provisions have been clarified to the extent that it is now explicit that the provisions do not cover the substance or contents of a communication.

However, we believe that other aspects of the Bill create intelligence gathering powers for intelligence and law enforcement agencies on an entirely new basis and other aspects pay scant regard to fundamental principals of personal privacy. In respect of these provisions the Democrats are opposed to the Bill and will move several amendments to ameliorate its worst aspects.

Interpretation issues—‘enforcement agency’ and ‘telecommunications data’

The legislation gives enormous powers to law enforcement agencies to monitor the private conversations of Australians.

Privacy is a fundamental human right, and Parliament has a duty to limit the violation of this right to only those situations where exceptional circumstances justify it. In this respect, we must be careful to limit the powers to only those agencies that can positively justify being vested with them.

As the Chair of the Senate Committee noted in his report, CrimTrac is one agency that has been unable to justify its vesting with such powers. CrimTrac is not a law enforcement agency authorised to conduct investigations into suspected offences except in limited circumstances related to spent conviction legislation.

As such we consider that CrimTrac should be removed from the definition of ‘enforcement agency’ and we will be moving amendments to that effect.

Another area of concern to the democrats is the lack of a clear definition for ‘telecommunications data’.

The Government must respond to the trend has seen current and emerging communications technologies merge areas that have traditionally been separately regulated.

During the course of the Senate inquiry, various examples of converging technologies were discussed including, web browsing, downloading from the internet, entering chat rooms, sharing emails, taking digital photographs and video footage and playing MP3 files all from a mobile telephone. Questions were raised as to what information captured can properly be considered telecommunications data.

The Democrats consider that the best way to deal with these new technologies is to give certainty as to whether or not the information they produce can be categorised as telecommunications data. This is something which the Attorney-General’s Department appears reluctant to do.

The Attorney-General’s Department has stated that they are ‘concerned about defining technology and call associated data now because the definition might be redundant in 12 months time’.  The Democrats are dissatisfied with this reason.

As a matter of public policy, it is desirable to clarify what is meant by telecommunications data now. The definition can be amended in due course if the development of technology demands it.

With advances in technology it is important to clarify the scope of telecommunications data to reassure current and future users of new technologies that such communications may or may not be intercepted.

In the very least, a definition which is technology neutral but which highlights that the information being sought is information about the communication rather than the communication itself, would fit in with the Government’s policy rationale and provide some degree of certainty.

Prospective data and location information

Proposed section 176 and 180 of the Bill do not transfer existing provisions of the Telecommunications Act, but create a new scheme for access to prospective information or documents for ASIO and other law enforcement agencies.

The effect of these provisions is that ASIO and law enforcement agencies will have access to ‘real time’ mobile phone data which could allow agencies to pinpoint, with reasonable accuracy, the location of a user. In other words, mobile phones could become a de facto tracking device, and the Bill does not oblige agencies to obtain a warrant for this purpose.

The prospect that our mobile phones will soon have the ability to divulge precise location data is far from fanciful. Already some of the major networks are advertising GPS technology as a standard feature.

The Democrats consider that a person’s mobile telephone phone should not be used as surrogate tracking and tracing technology for people in the absence of any countervailing public interest, significant independent oversight and public reporting.

We favour access to location information only through a warrant and will be moving an amendment to that effect.

If this amendment is not accepted by the Government, the Bill will allow mobile telephone location information to be disclosed under a written authorisation for a period of 45 or 90 days without the need to obtain a warrant.

The Democrats also consider this time frame is excessive and should be limited.

Public Interest Monitor

Commendably, the Bill also creates new controls over the existing access framework.

However, given the Democrats view that this Bill involves a widening of the Commonwealth phone-tapping powers; it is appropriate that there be an independent umpire to balance necessary, lawful, and proportionate access by law enforcement agencies to telecommunications data with the public’s right to communicate free from surveillance.

The Democrats note that in relation to the area of listening devices, a model can be found in Queensland, where a Public Interest Monitor is authorised under the Police Powers and Responsibilities Act 2000 (Qld) to intervene in applications for listening devices warrants, and to monitor and report on the use and effectiveness of the warrants.

The Democrats have advocated the establishment of a Public Interest Monitor in other forums and see merit in adopting the Queensland public interest monitor model to improve accountability.

Conclusion

In summary, the Bill confirms privacy as a valued norm but does not do enough to protect Australians’ private conversations and communications.

While legitimate law enforcement activities may in exceptional circumstances override a right to privacy, the increasingly complex telecommunications environment exposes individuals to arbitrary interference. Agencies should not be able to self authorise such invasions without reasonable oversight from the judiciary.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

The Greens have some substantial issues with the Telecommunications (Interception and Access) Amendment Bill 2007. I know the government sought to have this legislation dealt with as non-controversial legislation, but we believe that it has some significant implications for the community in terms of its interception and access capacity. We think that it is being rushed through the legislative process and believe that it needs some further amendments. The Greens will be seeking to move some amendments on this legislation. I think that our spokesperson on these issues will probably be able to deal with this legislation in a much more comprehensive manner than I am able to.

Ruth Webber (WA, Australian Labor Party) Share this | Link to this | Hansard source

I seek leave to incorporate Senator Bishop’s speech.

Leave granted.

Mark Bishop (WA, Australian Labor Party) Share this | Link to this | Hansard source

The incorporated speech read as follows—

This Bill is important for Australia’s police and anti-terrorist efforts. It’s the second in a series flowing from the Tony Blunn review into the regulation of telecommunications access. As such, it contains no surprises. It doesn’t contain any new powers for police on either interception or access to data. Nor does it deal specifically with powers of interception—but rather access to data. By data, the bill doesn’t mean content of calls.

There’re standard procedures for that which require warrants. Rather, it clarifies the existing law. I accept the Government’s assurance that it provides some extra safeguards to that access. Today I don’t intend canvassing some of the more controversial aspects of this Bill. The debate on these has been covered by the report of the Senate Legal and Constitutional Affairs Committee. During the recent inquiry into organised crime by the Joint Committee on the Australian Crime Commission, evidence was taken from state police forces.

One of the most common deficiencies, in the committee’s view, was access to telecommunications data. A little context here might be useful. One of the biggest problems confronting law enforcement agencies in their fight against organised crime is access by those criminals to modern sophisticated technology. These days, criminals use stolen mobile phones and SIM cards for single calls only. That’s because the location and data on those phones is easily traced. Or they purchase mobiles with false names—apparently easy to do.

Hence the problem for police, who need better security and identity checks for those buying mobile phones and SIM cards. It’s not just a matter of knowing what calls are being made. Information such as time and recipient is easily available,—although this Bill cleans-up some of the rules around that access. It’s a matter of identity of the person with the phone. The 100 point identity check recommended by the Committee might help here. Even though it may cause some public inconvenience. In my view that’s a small price to pay.

The next level of access by police is to real time information on call data where that is vitally important. To that extent, mobile phones can be tracking devices for the police. Some may say that’s an invasion of privacy, but I don’t agree.

Criminal access to sophisticated technology is so difficult to combat, any advantage the police can gain from it should be supported. Provided, of course, the power given by this access isn’t abused. And that’s the purpose of this Bill. Innocent people in these circumstances—where criminals need to be rounded up—have nothing to fear.

Above this level of access to call data, there is access to content. That’s interception and it’s available too, but again only according to strict rules.

Those rules are set out clearly in this Bill, just as they are for access to call data, historic or prospective. As I said, the pros and cons of those rules are addressed in the legal and Constitutional Affairs Committee report.

Problems of criminal access to sophisticated communication technology goes far beyond mobile phones.

The Internet itself has become a major vehicle for crime and organised crime in its own right.

That is, not just as a facilitator of crime. This legislation addresses that technology in the same way.

That may be something the joint Committee on the ACC didn’t sufficiently appreciate. State police expressed concern about their capacity to obtain data on e-mail transmissions and anything else through data lines.

That’s also accessible with the same rules to which I’ve referred. That means that data can be obtained on the timing, place and duration of any Internet transmission—but not content.

Access to content is possible too, just as with phones, but again, only by warrant. These are serious checks to protect those values on which some express their genuine concern. State police also expressed concern to Voice Over the Internet Protocols, otherwise known as VOIP.

This Bill also regulates access to that information. So the response to the evidence given by state police forces about access to communications data, in whatever form, are unfounded. As this legislation makes clear, access is available but only within strict rules. The next debate, then, is whether those rules are strict enough.

Again I won’t canvass that issue here because the Legal and Constitutional Affairs Committee did it adequate justice. But I thought I’d pay particular attention to these issues today because I doubt the substance is well understood. Part of the reason for that is the need to avoid controversy.

That’s because the balance between public safety and the invasion of important rights is a fine one. In this case, I’m confident that line hasn’t been crossed. I accept, however, some uncomfortable trade-offs may be made in the public interest.

That judgement, as is often the case, is one for elected representatives in this place. It’s not a responsibility we take lightly. When it comes to the interception, tracking and detection of child pornographers using the Internet, there’s no question.

Thus, the threshold penalty of three years for any crime, set as a restriction on the use of these powers, has not been applied to child pornography. think the three-year limit is reasonable. also believe the exemption of child pornography offences of any degree is also laudable. These provisions, though, might warrant further scrutiny.

With respect to the rest of the Bill, it’s important to note the responsibilities In this area for telcos and Internet companies. They’re set out in detail. Without the carriers’ obligations to provide access to information on either data or content, no such scheme would be possible. I know from their evidence that state police forces are concerned at the cost of obtaining information on call data. Again, this Act being includes provisions which facilitate rapid access, yet don’t penalise the telcos. We know it’s onerous and we know there’s a cost. But its one which needs to be borne.

Mr Acting Deputy President, we support the Bill.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

I seek leave to incorporate my speech in Hansard.

Leave granted.

The speech read as follows—

The secret surveillance of citizens by state authorities is a common theme in drama and fiction. From Shakespeare to today’s Hollywood films—such as the Jason Bourne trilogy—the fear of an all powerful state spying and trampling on people’s rights has popular resonance.

And it has popular resonance for a reason. The overbearing power of the state to interfere and punish is a real problem of contemporary life across the globe.

Arbitrary and administrative imprisonment, the removal of the right to silence, suppression of freedom of expression and encroachments on the right to privacy are growing across the Western world.

The horrible irony is that it was precisely these problems that modern liberalism sought to address by seeking a balance between the rights of individuals and the powers of the state.

But it is this balance, often under the guise of the war on terrorism that has been jettisoned by neo- conservatives such as the Liberal Party and the Howard government. This bill, the Telecommunications (Interception and Access) Amendment Bill 2007 is the latest manifestation of this process and it is a major threat to privacy and civil rights.

This “track and tap” bill will enable police and security agencies such as ASIO to conduct real time tracking of people’s mobile phones and Internet browsing without obtaining a warrant.

Telephone and Internet companies will be required to funnel data on phone calls, email, voice-over-the-internet (VOIP) and web browsing in real time to the police or ASIO. The data includes phone numbers, caller locations, web addresses and other telecommunications information.

Before examining in detail the Greens particular concerns about this bill I will briefly review the sections of the bill that set up these new powers for the police and ASIO.

Unlike much of the Bill, the proposed Sections 176 and 180 are not merely the shifting of provisions of the Telecommunications Act. Rather they allow ASIO, police and other criminal law enforcement agencies access to telecommunications information they have never had before.

Section 176 allows an eligible person within ASIO to authorise the disclosure of prospective telecommunications data to ASIO, on a “near real-time” basis for a period of 90 days.

Section 180 allows an authorised officer within a criminal law-enforcement agency which includes state and federal police to authorise the disclosure of prospective telecommunications data to that agency, on a near real-time basis for a period of 45 days.

In order to issue such an authorisation, the authorised officer must be satisfied that the disclosure is reasonably necessary for the investigation of an offence that is punishable by imprisonment for at least 3 years.

I understand from communication between my office and the government that near-real time means immediate communication from the telecommunications company or Internet service provider and the agency.

How instantaneous such communication would be is dependent on technological capacity but it would be no more than a few minutes.

This then opens up the prospect of such communications being able to be observed in effectively real time.

This will mean every mobile phone could become a tracking device for the police or ASIO.

Every website address a person visits will also be able to be monitored.

And there is no judicial oversight and no accountability.

To much of the Australian public particular those who know that Big Brother was a novel by George Orwell not a just a television show, such a prospect is no doubt of extreme concern.

It is certainly of concern to The Greens.

It is important to remember when considering this issue that the Telecommunications Interception Act 1979 was passed at time when digital communications did not exist.

It was then accepted that the tapping of someone’s phone was such a significant encroachment on a person’s privacy that a warrant was required and judicial oversight was needed.

Overtime and with the development of digital communications more and more information is now available beyond merely the content of the phone conversations.

Security agencies and the government have used this fact to argue that such data whilst disclosing information on person is not of the same significance as the content of a call and that therefore the principle of judicial oversight first elaborated in the analogue age could be discarded.

While such an argument has gained some currency it does not stand up to scrutiny.

Whether or not the secret surveillance of the content of a phone call is a greater breach of person’s privacy than knowledge of who they are calling and where they have visited all depends on context.

The fact is, allowing police or ASIO to track the movement of a person or what websites they have visited for one or three months is as much an intrusion on their privacy as listening to a person’s phone calls.

Tracking Internet browsing is particular intrusive. The Electronic Frontiers Foundation said in their submission to the Senate Inquiry on this bill that: 

Surveillance of web browsing activities is akin to filming individuals’ activities in a manner that records every item they purchase in shops, every film they see at the cinema or hire or buy, every book and magazine they glance through and/or purchase or take out on loan from a library and so on. Furthermore, unlike “telecommunications data” about telephone calls and email messages, the address of a web page often, of itself, provides information about the content or substance of the communication and web page addresses can be used to obtain access to the content that was communicated.

Tracking of mobile phones could become more intrusive overtime as the Electronic Frontiers Foundation has also pointed out. They say: 

New technologies such as Assisted GPS, reportedly expected to be introduced in Australia by some carriers in 2007 or 2008, will greatly improve the accuracy of mobile phone location information. Access to ‘prospective” location information enables not only identifying/tracking location but potentially real world, real time, surveillance of a tracked individual’s activities.

Therefore the Greens believe the police and ASIO should have to get a warrant to track and tap people’s mobile phones or web browsing.

The Law Council of Australia shares our concerns they said in their submission to the Senate Legal and Constitutional Legislation Committee that: 

Given the invasion of privacy it represents, the Law Council believes that criminal law- enforcement agencies should require a warrant in order to access prospective telecommunications data and thus use a person’s mobile phone as a tracking device.

The Law Council recognises that under Section 39 of the Surveillance Devices Act 2004, law enforcement officers are already able to use a tracking device without a warrant in the investigation of a federal offence which carries a maximum penalty of at least 3 years.

This is provided that written permission is received from an “appropriate authorising officer” and installation and retrieval of the device does not require entry onto premises without permission or interference with the interior of a vehicle without permission.

Nonetheless, the Law Council believes that the ease with which telecommunications data may be used to track a person, as compared to the difficult of secretly affixing a physical tracking device to a person or thing, renders proposed s 180 far more amenable to misuse or overuse by law enforcement agencies than existing provisions in the Surveillance Devices Act 2004.

It is on that basis that the Law Council believes that access to prospective telecommunications data should require a warrant.

There are other aspects of this bill that deserve some attention. It should be noted that increasingly telecommunication companies and Internet service providers are concerned about the burdens and obligations placed on them by national security laws and agencies.

I know that the Internet Industry Association and the Australian Mobile Telecommunications Association have expressed concerns about aspects of the bill that have not been addressed.

Also worth noting is that although the government claims to be implementing the Blunn review into telecommunications interception this bill goes far beyond the recommendations of the Blunn review and in particular the proposal to turn all mobile phones into tracking devices and monitor web browsing was not recommended.

There are aspects of the bill that deserve support such warrants for phone tapping during investigations of child pornography, but The Greens cannot support the bill in its present form.

The reality is this bill is more like something from East Germany than a government claiming to support liberal principles.

It is a major attack on Australian’s privacy on the eve of an election in the dying days of this Parliament.

It is further a travesty that the Labor opposition is so unwilling to stand up for Australian’s privacy because it has adopted a “me-too” approach when it comes to national security.

I expect the late great Lionel Murphy would be ashamed.

The Greens will oppose this bill.

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

I thank senators for their contribution. In 2005 an independent report prepared by Anthony Blunn AO recommended the development of a single, overarching legislative scheme regulating access to telecommunications interceptions, stored communications and telecommunication data. Simply put, the Telecommunications (Interception and Access) Amendment Bill 2007 gives effect to that recommendation. The bill does this by moving relevant provisions of the Telecommunications Act 1997 and regulating the disclosure of telecommunications data to law enforcement agencies through the Telecommunications (Interceptions and Access) Act 1979.

In addition to these amendments to consolidate the regulation of access to communications, the bill also includes amendments to allow the use of telecommunications interception in the investigation of all offences related to child pornography. This change reflects the seriousness of child pornography offences and also recognises that these offences are committed via communication networks and are most effectively addressed through access to communications.

It is important to stress that this proposal does not represent new powers for the security and law enforcement agencies; rather, it creates new, more systemic and appropriate controls over the existing access framework. The bill has been considered by both the Senate Standing Committee for the Scrutiny of Bills and the Senate Standing Committee on Legal and Constitutional Affairs. I thank senators on both committees for their diligent work and the matters they raised. I know that the Attorney-General tabled a revised explanatory memorandum in the other place to address the matters raised by the Scrutiny of Bills Committee. The government has also considered the recommendations of the Senate Legal and Constitutional Affairs Committee in relation to ensuring appropriate privacy protection. The committee made several recommendations, which I will briefly address.

Firstly, the committee recommended that the CrimTrac agency be removed as an enforcement agency. The government does not agree with this recommendation. CrimTrac plays a valuable and growing coordination role, providing assistance to Commonwealth, state and territory agencies in criminal investigations in its role as a provider of national information services. It is for this reason that CrimTrac has always been an ‘enforcement agency’ under section 282 of the Telecommunications Act 1997. The transferred provision simply updates the agency’s name.

Secondly, the committee supported the use of the Communications Access Coordinator’s determination making power to provide guidance to agencies on how they should take privacy matters into account in authorising access to prospective data. The government remains committed to privacy protection and supports this role for the Communications Access Coordinator. In this context, I note that the bill requires consultation with the Office of the Privacy Commissioner when developing this guidance.

Thirdly, the government agrees with the committee’s views on the role of the Inspector-General of Intelligence and Security, IGIS. The inspector-general already has extensive oversight powers and will be able to use these powers with respect to ASIO’s use of the proposed regime without the need for additional legislative provision.

Fourthly, the committee recommended that the Attorney-General’s Department arrange for an independent review of the interception act within five years. As the Attorney has previously indicated, the government does not support this recommendation. While regular review is important, experience shows that the pace of technological change alone continues to drive regular re-examination of the act. In fact, there have been 10 such reviews in recent years—five by independent officers and five by committees of the Senate.

The bill is another significant step in making sure that Australia’s laws for accessing telecommunications information for law enforcement or national security purposes keep pace with the rapidly changing telecommunications environment. This bill dramatically clarifies the regime by collocating relevant provisions in a single regime. This will provide a more transparent, understandable regime for agencies, the telecommunications industry and the public. Again, I thank senators for their contribution. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.