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

To facilitate proceedings, I move Australian Democrats amendment (1) on sheet 5380:

(1)    Schedule 1, item 6, page 4 (line 24), omit paragraph 5(1)(m).

As senators would be aware from the notes of my speech in the second reading debate, which I am sure they will duly read in retrospect through the Hansard, the Democrats have voiced concerns about the significant privacy implications of this bill. Given the invasion of privacy that we believe this legislation allows, we believe that access should be limited only to those agencies that can justify the vesting of such powers. We believe that CrimTrac is one agency that has been unable to justify being vested with such powers. It is not a law enforcement agency authorised to conduct investigations into suspected offences except in limited circumstances related to spent conviction legislation. Effectively this amendment deletes subclause 5(1)(m) from the proposed bill to remove CrimTrac from the definition of an enforcement agency.

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

Labor oppose the Democrats amendment. It may be, and perhaps it is unfortunate, that this matter has progressed a bit further since the Senate committee hearings, and we are in a better position to understand some of the nuances of the debate. Whilst acknowledging that CrimTrac does not have the investigative powers of traditional enforcement or security agencies, 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.

I will not go through what CrimTrac is—I think most senators in this chamber have heard what CrimTrac does and does well—but, since November 2004, CrimTrac has been brokering Sensis direct access information on behalf of all policing jurisdictions and other criminal enforcement agencies to provide them with pertinent information about telephone subscriptions when investigating, preventing and prosecuting criminal offences. Access to this information is governed by various processes and procedures according to the law enforcement agency requesting the information.

Enforcement of criminal law covers a wide spectrum of activities and depends on the organisation to which the investigator belongs. CrimTrac currently brokers that on behalf of all policing jurisdictions across Australia, including the AFP. In addition, CrimTrac brokers telecommunications data on behalf of a number of other law enforcement agencies, which include the Australian Customs Service, the New South Wales Independent Commission Against Corruption, the Crime and Misconduct Commission of Queensland, the Australian Crime Commission and the Australian Securities and Investments Commission.

The current application used by CrimTrac gives a simple forward, reverse and address based search on behalf of those law enforcement agencies. By undertaking these actions, CrimTrac ensures that all organisations are legitimately entitled to have access before approving individuals on a case-by-case basis. Access is granted to individuals, not organisations, work units or teams, according to their responsibility and rank. It goes without saying that that clearly supports, in Labor’s view, why CrimTrac remains central to this jurisdiction and why, given its direct role, it requires that access. Given the nature of what I have just said and the time available, I will not go into any further reasons which support that. If the Democrats want to dispute it further, I can provide more evidence to justify the position.

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

Obviously the government does not accept this amendment. It comes as no surprise to the honourable senator. Given the general prohibition on the disclosure of telecommunications information in the Privacy Act, which requires that information is only used in relation to the purpose for which it was collected, CrimTrac’s ability to undertake this role is directly linked to its inclusion in the definition of an ‘enforcement agency’ within the legislation. The removal of CrimTrac from this definition would mean that agencies would be required to establish their own infrastructure to access this information, increasing the burden on smaller agencies to develop their own contractual arrangements with information providers. Obviously this would divert resources, be inconvenient and undermine the purposes of the act.

Question negatived.

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

by leave—I move Democrats amendments (2) and (3) on sheet 5380:

(2)    Schedule 1, item 12, page 9 (after line 27), at the end of section 176, add:

Judicial warrant required for access

        (7)    Notwithstanding the other provisions of this section, any authorisation for access to prospective information or documents in accordance with this section is void unless it complies with Divisions 1 and 2 of Part 2, and Part 3 of the Surveillance Devices Act 2004.

(3)    Schedule 1, item 12, page 11 (after line 30), at the end of section 180, add:

Judicial warrant required for access

        (8)    Notwithstanding the other provisions of this section, any authorisation for access to prospective information or documents in accordance with this section is void unless it complies with Divisions 1 and 2 of Part 2, and Part 3 of the Surveillance Devices Act 2004.

Both these amendments relate to judicial warrants being required for access. We believe that access to prospective telecommunications data has the potential to allow real-time monitoring of location information—that is, in effect an authorisation for access to such data amounts to a de facto surveillance device. Accordingly, we believe that access should be subject to the same scrutiny and judicial oversight as applications for surveillance devices under the Surveillance Devices Act. At a minimum, we say to the government and to the parliament: if you insist on having this kind of legislation and this particular access or these powers for law enforcement agencies, then at least ensure that you have a couple of basic safeguards in place that are at least comparable to those that already operate under the Surveillance Devices Act. Therefore, we are amending proposed section 176, which concerns ASIO, and proposed section 180, which concerns enforcement agencies, to require that access to prospective information by these organisations requires a warrant.

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

The Australian Greens support these amendments. As I said in my speech on the second reading and have indicated before, our concern is that this bill allows the government to have access to telecommunications data that they do not currently have. Currently they require a warrant to tap phone calls. We do not think they should be able to have access to information about who you are calling, where you are calling from and what website you are accessing without obtaining a warrant. The same regime that operates requiring a warrant for telecommunications should operate in relation to this additional information that is now available around telecommunications because of the way mobile phones and the internet operate. The same system should apply across the board. That is why we support these amendments.

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

The opposition does not support the two amendments. The new provisions in the legislation distinguish between access to historical telecommunications data—that is, data which is already in existence at the time of the request—and prospective data, being data that is collected as it is created and forwarded to the agency in what is commonly referred to as near real time. Access to prospective telecommunications data is only available to ASIO or criminal law enforcement agencies because of—and quite rightly—the high privacy implications of this type of access. But it does not come without more protections. Access to prospective telecommunications data would require a higher threshold of authorisation allowing for future access to telecommunications data. That is covered in the proposed sections 176 and 180.

The need to distinguish between historical and prospective data is a reflection of the advanced technology that exists, which enables the use of telecommunications data to provide, amongst other things, location information. But it also provides, in order to reflect the increased privacy implications of access to prospective data, three more restrictive conditions, which are attached to these authorisations: (1) 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; (2) limiting the time frame for which an authorisation may be enforced to, under proposed section 180, 45 days for criminal law enforcement agencies and, under proposed section 176, 90 days for ASIO; and (3) requiring the authorising officer to have regard to the impact of the authorisation of the privacy of the individual concerned.

In respect of the warrant issue raised by the Democrats, we do not support the position that has been put. I will leave that to the government to deal with.

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

In response to Senator Stott Despoja of the Democrats and Senator Nettle of the Greens, the government obviously does not agree with this amendment, as it is unnecessary, based, if I may be so bold, on an incorrect understanding of the provisions, and is likely to be confusing in the future. I emphasise that these are not new powers, notwithstanding media reports—the Sydney Morning Herald springs to mind—which clearly disclose a total lack of understanding and an inability to digest and comprehend what this bill does. It is a bit sad, really, that such an important issue can be so misconstrued and misunderstood by journalists.

Telecommunications data has been available to law enforcement and ASIO since 1975. Advances in technology have meant that telecommunications data has become more detailed and the data can be provided in less time than in the past. In response to these new capabilities, the bill introduces new provisions which, for the first time, explicitly regulate the technological change that has occurred. The distinction between prospective data and historical data has not been created to allow access to a new class of data. It is a response to the privacy implications that have arisen out of the existing legal regime. It places new limits on access as well as new reporting requirements.

The regime to enable criminal law enforcement agencies to access prospective data is already based on the equivalent surveillance device warrant. Under the Surveillance Devices Act 2004, an appropriate authorising officer as defined and set out in that act may authorise the use of a tracking device without a warrant in instances where it will not involve any interference with the property of a person, as set out in section 39. A warrant is only necessary where covert entry to premises or a vehicle is required. Prospective data authorisations have similar requirements to these surveillance device authorisations with the express purpose of ensuring that the integrity of the surveillance device regime is maintained. I set this out because there is a degree of hysteria and misunderstanding surrounding what we are actually doing here. I can only repeat: these are not new powers.

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

I ask the minister: does that mean that you are already getting the information about where someone is making a phone call from and who they are making it to, without access to a warrant?

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

Under different circumstances.

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

What are those circumstances?

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

As set out in the Telecommunications Act.

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

There are two things that are being said here. In the explanatory memorandum, you say, ‘This is a new thing that we are doing.’ Now you are making an argument to say, ‘This is not something new.’ I appreciate your honesty in saying that you are already doing this; now I want to understand the circumstances. Your answer to me was, ‘As per the Telecommunications Act.’ The Telecommunications Act does not currently have, as you described, this regime for regulating this information about where you are and who you are talking to on the phone. Can you give me some more detail about the circumstances where you are already doing this?

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

There is no great art, secrecy or oppression of privacy rights here. Location information has always been available as part of the telecommunications data provided by carriers, as evident from any mobile phone bill—the suburb and the tower. That is all we are saying. The bill recognises that the speed of delivery of this information is increasing the potential of this type of information. That is what it is about.

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

Is the new part the transfer of that information to police and ASIO, or is it that it occurs in real time?

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

It is new protections because it can now occur in real time, and the objective is to have it in real time. There is not much point, in terms of counter-terrorism and other things, in being able to access the data after the bomb has gone off, if you follow me.

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

I am glad the minister made those last comments in clarifying that this is a new scheme for dealing with that proscriptive, prospective data—a new scheme for access to prospective data, information and documents for ASIO and for law enforcement agencies. It is a new scheme in that regard and I understand, and I think most of us understand, that there is an element here of trying to establish some kind of privacy right or regime.

The Democrats put on record that one of the problems here, in terms of both what exists now in the act and what we are talking about in this new scheme for access to prospective data, is the reluctance, inability or unwillingness—and I have heard the arguments—of the government to define the scope or define telecommunications data. I understand that this is partly because it is considered that the technology is innovative and hard to keep up with and therefore we cannot readily or easily define telecommunications data. I have some sympathy for that and I understand that particular reason, but it makes some of this law-making a little difficult. I think some of these issues might be resolved if the Attorney-General and the government were more willing to come up with a definition of telecommunications data. I do not want to open up that debate, because I know it is an ongoing one and we have all read reviews and have had this debate before.

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

We have tried that one before.

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

I acknowledge that Senator Ludwig has tried it. We have tried it. I do not think we are going to resolve it tonight, but I wanted to put it on record in relation to the debate happening between Senators Nettle and Johnston.

Question put:

That the amendments (Senator Stott Despoja’s) be agreed to.