Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

I move Democrat amendment (1) on sheet 5478 circulated in the name of Senator Stott Despoja on behalf of the Australian Democrats:

(1)

Page 2, (after line 11), after clause 3, insert: 4 Review of operation of Act

(1)

The Minister must cause an independent review of the operation of this Act to be completed at the end of every five years, with the first review due for completion on 30 June 2013.

I think I have notified all the whips, but just to make sure everybody is clear: all of the other circulated amendments from the Democrats that are on the running sheet I will not be proceeding with. They were sent around back in March when it looked like we might not get a committee review of this. We have had the committee review, so things have moved on. This single amendment is based on committee recommendation No. 7. I think Senator Ludwig has addressed this to some extent and has pre-empted the fabulous argument I am about to put forward, and he has rejected it before he has heard it on the basis of committee recommendation No. 7, which recommended the insertion of a statutory requirement for the act to be independently reviewed every five years. While the committee recommended the review requirement be inserted via separate legislation, the Democrats do not see any reason why it could not be inserted now.

This is the third time the act has been amended in as many years, and those amendments have dealt with controversial aspects such as B-party warrants, which I should repeat the ALP, when in opposition, had significant issues with at the time; expansions in the definition of ‘enforcement agency’ allowing an unprecedented number of organisations access to communications information—there were difficulties in defining exactly what telecommunications data is and therefore what law enforcement agencies are able to access; access to prospective, real-time telecommunications data and location information which, combined with the emergence of many new technologies threatens to act as an alternative surveillance mechanism; and further examination of device based warrants. As a result, it is not clear if an appropriate balance has been struck between necessary, lawful and proportionate access to telecommunications by law enforcement agencies on the one hand and the public’s right to communicate free from surveillance on the other. The risk to personal privacy is increased in the committee’s words ‘in lieu of an express right to privacy under Australian law’ and by the lack of any formal human rights instrument in Australia. Clearly, a comprehensive and independent review would be the best way to determine whether the correct balance has been maintained.

It is clear in the Democrats’ view that we need an urgent audit of the powers that are available under the act as a follow-up to the Blunn review, which was completed in 2005—that was nearly three years ago. Mr Blunn stated in his report:

It is inevitable that there will be further reviews.  Indeed given the rate of changes within the industry and within society more generally I believe that there is a strong case for regular reviews, say at three yearly intervals.

This amendment opts to implement the committee’s recommendation for review within five years rather than the shorter three-year period suggested by Mr Blunn, although a strong alternative can be easily made to support an immediate review followed by recurring reviews every five years. The Office of the Privacy Commissioner is also of the view that the operation of the act should be subject to overall independent review at least every five years due to the number of amendments to interception legislation in recent years and the resulting incremental expansion in powers.

Senator Ludwig, the minister representing the government, pointed out that there have been a number of reviews—Senate committee reviews and others. I think he said seven; I might not be right, but it was a significant number, anyway. I accept that but I think it is worth pointing out that the Senate committee inquiry we have just had was not a review of the totality; it was a review of a specific set of amendments. There is a real risk when you slice down and look at particular areas in a timely and critical fashion that you can risk not seeing the forest for the trees. I think this amendment seeks to have a review of the forest—the totality of how it operates—and have that regularly required in an independent way through the statute. That is the purpose behind it, and I think it is a meritorious one. I will leave my remarks there.

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

The government will not be supporting the Democrats amendment. The significant reasons for that were dealt with in the reply. The Democrats indicated that they had additional concerns. The primary purpose of the Telecommunications (Interception and Access) Amendment Bill 2008 is to extend the network protection sunset provisions by 18 months to allow a longer term solution to be implemented, recognising of course that the opposition have also sought that that be brought on well before the sunset provision expires.

In line with recommendation 1 from the substantive Senate committee report, any proposed amendments to the network protection provisions will aim to balance network protection requirements and individual privacy rights. Additionally, the government have undertaken to accept for further consideration recommendation 6 and 7 of the substantive Senate committee report for an independent review of the T(IA) Act within three years together with legislative amendments to require further review every five years. I think that adequately addresses issues raised by Senator Bartlett in his amendment. It would provide further complications if the government were to accept the nature of the review outlined in Senator Bartlett’s amendment. I think Senator Bartlett accepts that it is a complex and technical area. It will require the government to put its shoulder to the wheel to provide a legislative solution and provide it in a timely manner to allow those parties who have an interest in this area to examine it to ensure it balances the rights of the privacy concerns of individuals and the requirements of law enforcement agencies to legitimately target criminals and ensure that they are brought to justice, and to safeguard our national security interests, which are of concern to this government. We want to ensure not only that we strike the right balance but also that our law enforcement agencies are ably equipped to deal with the complex and technical issues and deal with criminals who continue to pursue things down every avenue available to avoid detection.

With those short words, I understand Senator Bartlett’s interest. However, I want to comment on one last matter. As Senate committees have come forward over time and dealt with each individual piece of legislation, I think it is not fair to say that they have not been drawn on the past history of committee reports in a more holistic way to examine this area, notwithstanding that there has been a range of external reviews that have looked into this particular area.

Question negatived.

I table a supplementary explanatory memorandum relating to the government amendments to be moved to this bill. The memorandum was circulated in the chamber today.

Chair, I am at the indulgence of the participants in the debate today as to whether government amendments can be moved in a block.

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

I might ask the other participants in the debate whether they are happy with Senator Ludwig seeking leave to move the amendments in a block.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

We have no objection.

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

There seems to be no objection in the chamber. Senator Ludwig, please proceed along the normal lines. We can always divide them and put individual issues separately.

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

by leave—I move government amendments (1) to (15) and (17) to (21) on sheet RB375:

(1)    Clause 2, page 2 (table item 8), omit the table item, substitute:

(2)    Schedule 1, items 3 to 5, page 3 (lines 13 to 22), omit the items, substitute:

3  Subparagraph 9A(1)(b)(ii)

After “telecommunications device”, insert “or particular telecommunications devices”.

4  Paragraph 9A(1A)(b)

After “telecommunications device”, insert “or telecommunications devices”.

5  Subsection 9A(1A) (note)

After “telecommunications device”, insert “or telecommunications devices”.

(3)    Schedule 1, item 6, page 3 (lines 26 and 27), omit “any telecommunications device”, substitute “a telecommunications device or telecommunications devices identified in the warrant”.

(4)    Schedule 1, item 6, page 3 (line 28), after “sufficient to identify the”, insert “telecommunications device or”.

(5)    Schedule 1, item 7, page 3 (line 31) to page 4 (line 2), omit the item, substitute:

7  Subsection 9A(3)

After “telecommunications device”, insert “or telecommunications devices”.

(6)    Schedule 1, items 8 to 10, page 4 (lines 3 to 11), omit the items, substitute:

8  Subparagraph 11B(1)(a)(ii)

After “telecommunications device”, insert “or particular telecommunications devices”.

9  Paragraph 11B(1A)(b)

After “telecommunications device”, insert “or telecommunications devices”.

10  Subsection 11B(1A) (note)

After “telecommunications device”, insert “or telecommunications devices”.

(7)    Schedule 1, item 11, page 4 (lines 15 and 16), omit “any telecommunications device”, substitute “a telecommunications device or telecommunications devices identified in the warrant”.

(8)    Schedule 1, item 11, page 4 (line 17), after “sufficient to identify the”, insert “telecommunications device or”.

(9)    Schedule 1, item 12, page 4 (lines 20 to 22), omit the item, substitute:

12  Subsection 11B(3)

After “telecommunications device”, insert “or telecommunications devices”.

(10)  Schedule 1, items 13 and 14, page 4 (lines 23 to 28), omit the items, substitute:

13  Paragraph 16(1)(aa)

After “telecommunications device”, insert “or telecommunications devices”.

14  Paragraph 16(1A)(b)

After “telecommunications device”, insert “or telecommunications devices”.

14A  Paragraph 16(2)(a)

After “telecommunications device”, insert “or telecommunications devices”.

14B  Paragraph 16(2)(b)

Omit “that device”, substitute “the device or devices”.

(11)  Schedule 1, item 20, page 5 (line 33) to page 6 (line 1), omit “any telecommunications device”, substitute “a telecommunications device or telecommunications devices identified in the warrant”.

(12)  Schedule 1, item 20, page 6 (line 2), after “sufficient to identify the”, insert “telecommunications device or”.

(13)  Schedule 1, item 21, page 6 (lines 4 and 5), omit the item, substitute:

21  Subparagraph 46A(1)(d)(ii)

After “telecommunications device”, insert “or particular telecommunications devices”.

(14)  Schedule 1, items 23 to 25, page 6 (lines 8 to 16), omit the items, substitute:

23  Subsection 46A(1) (note)

After “telecommunications device”, insert “or telecommunications devices”.

24  Subparagraph 46A(2)(a)(ii)

After “telecommunications device”, insert “or particular telecommunications devices”.

25  Subsection 46A(3)

After “telecommunications device”, insert “or telecommunications devices”.

(15)  Schedule 1, item 31, page 7 (lines 19 and 20), omit “any telecommunications device”, substitute “a telecommunications device or telecommunications devices identified in the warrant”.

(17)  Schedule 1, item 35, page 8 (lines 10 to 12), omit the item, substitute:

35  Paragraph 60(4)(aa)

After “telecommunications device”, insert “or telecommunications devices”.

(18)  Schedule 1, item 37, page 8 (lines 15 to 17), omit the item, substitute:

37  Paragraph 60(4A)(b)

After “telecommunications device”, insert “or telecommunications devices”.

(19)  Schedule 1, page 8 (after line 23), after item 39, insert:

39A  Paragraph 60(5)(b)

After “a particular device”, insert “or particular devices”.

(20)  Schedule 1, page 9 (after line 4), after item 43, insert:

43A  Paragraph 100(1)(ec)

Repeal the paragraph, substitute:

           (ec)    in relation to all named person warrants issued during that year on application made by each agency or authority:

                   (i)    the total number of telecommunications services intercepted under those of the warrants that did not authorise the interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant; and

                  (ii)    the total number of telecommunications services intercepted under those of the warrants that did authorise the interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant; and

                 (iii)    the total number of telecommunications devices by means of which communications were intercepted under those of the warrants that did authorise the interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant; and

(21)  Schedule 1, page 9 (after line 10), after item 46, insert:

46A  Paragraph 100(2)(ec)

Repeal the paragraph, substitute:

           (ec)    in relation to all named person warrants issued during that year:

                   (i)    the total number of telecommunications services intercepted under those of the warrants that did not authorise the interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant; and

                  (ii)    the total number of telecommunications services intercepted under those of the warrants that did authorise the interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant; and

                 (iii)    the total number of telecommunications devices by means of which communications were intercepted under those of the warrants that did authorise the interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant; and

The government opposes item 31 in schedule 1 in the following terms:

(16)  Schedule 1, item 31, page 7 (line 25) to page 8 (line 3), subsection 59A(3) to be opposed.

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

I note that (16) on sheet RB375 is separated out because it opposes a schedule of the legislation.

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

Thank you, Chair. Amendment (1) relates to the commencement provisions in schedule 1 of the bill and provides that items 38 to 43 and 44 to 48 commence on the day the act receives royal assent. Item 39A, in relation to the device based named person warrants, will commence on proclamation to ensure the necessary amendments to the Telecommunications (Interception) Regulations 1987 are made prior to the commencement. Items 43A and 46A, in relation to the new reporting requirements for the named person warrant regime, will commence on 1 July 2008 to allow the required administrative process to be implemented.

Amendments (2) to (10) relate to the device based named person warrants issued to the Australian Security Intelligence Organisation and amend the bill to remove the provisions that enable ASIO to add a device to a device based named person warrant after it is issued. Consequent technical amendments have also been made to the proposed provisions in the bill that enable device based named person warrants to be issued in relation to multiple devices to require all devices to be identified in the warrant. These amendments provide clarity and certainty to law enforcement and security agencies and telecommunications carriers with obligations under the act, and respond to issues raised during the Senate consideration of the bill. Amendments (11) to (19), in relation to the device based named person warrants issued to law enforcement agencies, ostensibly do the same thing.

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

Senator Ludwig, I assume you are not dealing with (16), or are you just talking to it?

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

I intend to talk to it just to deal with it. I thought (16) would then be separated out and voted on separately.

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

We are separating it out.

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

Amendments (11) to (19) amend the bill to remove the provisions that enable law enforcement agencies to add a device to device based named person warrants after they are issued. As I indicated, they do a similar thing to what the previous ASIO amendment did. They are consequent technical amendments that have also been made to the proposed provisions of the bill that enable the device based named person warrant to be issued in relation to multiple devices to require all devices to be identified in the warrant. And they do provide the certainty to law enforcement and security agencies and telecommunication carriers of obligations under the act and respond to those matters that were raised during the Senate committee consideration of the bill.

Finally, amendments (20) and (21)—additional reporting requirements for named person warrants—impose a requirement for separate statistical reporting on the number of services intercepted under service based named person warrants and device based named person warrants and reporting on the total number of devices intercepted. These amendments will ensure that statistical information is available and provide greater transparency, further strengthen the extensive reporting provided by the Telecommunications (Interception and Access) Act 1979 and address the recommendations made by the Senate committee. I have moved those amendments together, but the question for (16) will be dealt with separately.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

Can I just indicate on behalf of the opposition that we will be supporting these amendments. They adopt recommendations of the Senate committee which were generated from the opposition and from crossbench parties, and we think they improve the legislation.

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

In my initial remarks I talked about concerns in relation to being able to add additional devices to be tapped or intercepted without needing a warrant and my understanding is that these amendments remove the situation that I expressed concern about. Therefore the Greens are happy to support these amendments, but I want to ask Senator Ludwig to confirm that for me on the record.

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

That is correct, Senator Nettle.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

For the record, the Democrats support these amendments. As has been stated, they reflect the committee recommendations and I put on the record again that the benefit of Senate committee inquiries is precisely this purpose, particularly when they are able to come up with unanimous reports. It is worth noting and praising the contribution of government senators and the government chair of this committee, Senator Crossin. It is the way it should be but it does not always happen, so it is worth noting when government chairs and government members of a committee are happy to support and propose recommendations to amend legislation. I also point out the Democrats’ role in referring it to inquiry in the first place, rather than flicking it through on a non-controversial basis. It does highlight that the initial suggestion, which may have been made unknowingly, that these were just minor technical amendments that did not introduce new powers and that they just reflected the parliament’s original intent from 2006, were simply wrong. It may have been an innocent mistake, but they were wrong. It is a reminder that we should not take those sorts of statements at face value.

On indulgence, it may be my final opportunity and I have noted Senator Ludwig’s comments a couple of times about my ongoing interest in this area. I thought it worth putting on the record, given the broader political context of the next month or two, the longstanding interest of a number of people from the Democrats over many years in privacy and related issues, going back at least to Senator Janine Haines in the 1980s through to Senator Stott Despoja and a number of others in between. Given the wider context, I thought I would note the contribution of many people from the Democrats in giving a particular priority and focus to this issue over a number of years. I am sure others will continue to do so and I wish them well in their task because it is a complex area. It is one of those areas where you do have competing principles, each of which has a lot of validity to them. Striking the right balance is important. The more people can drain away some of the political rhetoric which can impose itself in this area and obscure some of the complexities that actually lie underneath, the better. That is where Senate committees, at their best, can do a really good job. I think these amendments, which have come out of that process, are a reflection of that.

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

I just want to say that, while we are acknowledging lots of people, let us acknowledge the Law Council, the New South Wales Council for Civil Liberties and Electronic Frontiers Australia, who were part of the community campaign to get all of those politicians that we have just talked about to make these improvements happen.

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

The question is that government amendments (1) to (15) and (17) to (21) on sheet RB375 be agreed to.

Question agreed to.

The question is that schedule 1, item 31, subsection 59A(3) stand as printed.

Question negatived.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.