Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Hansard source

in reply—I thank the members who have contributed to the debate: the members for Gellibrand, Moncrieff, Denison, La Trobe, Newcastle, Kingsford Smith and Banks. I will deal with the individual comments as I deal with particular issues in this summing up. The Telecommunications (Interception) Amendment Bill 2006 illustrates the government’s commitment to ensuring that security and law enforcement agencies are equipped with appropriate powers to combat and prevent serious crime, including terrorism.

At the same time, the bill reflects the government’s consistent adherence to ensuring that there are appropriate privacy protections for users of the Australian telecommunications network. We believe that the measures that we are proposing are balanced and appropriate to the threats that we face and will enable important investigations to be adequately undertaken.

The new stored communications warrant regime implements the recommendations of Tony Blunn for an overarching regulatory framework to access communications such as emails, voice mail and SMS messages. Members have known for some time that this is a very important area for the law to move on, and this was the subject of consideration in the Senate on a number of occasions. Legislation to deal with the matter temporarily has been the subject of a sunset clause, which will run out in June this year.

This legislation is the considered response to those issues and will deal with those matters in a balanced way. Tony Blunn undertook the work to develop the proposal. The new regime strikes a careful balance, on the one hand creating a new prima facie protection for stored communications while on the other creating a defined regime to provide law enforcement agencies with appropriate access.

I note, for instance, the member for Denison’s concern that the proposed stored communications regime is not subject to the same restrictions as interception. There is a reason for this. It is because of the way in which these matters are accessed. You access them, essentially, at one single point in time, whereas the interception regime is a continuing monitoring over a longer period of time. The concerns, in our view, are misplaced.

Under the current laws, only those communications in their passage over the telecommunications systems are subject to the restrictions imposed by the interceptions regime. This bill has the effect of creating a new protection for those communications that are stored by a carrier which would otherwise be susceptible to access under the lower threshold applicable to search warrants.

This is an intermediate regime. Search warrants have a far lesser threshold to be satisfied. This is not going to the level that would apply in relation to a continuous monitoring, but to a higher threshold than that which applies for search warrants. That is the important point that needs to be understood. Given the differences, we think that the additional arrangements over and above those applicable to search warrants are the appropriate and balanced approach to dealing with these stored communications such as email and SMS messages.

For completeness, I note that the measures will not affect the existing arrangements in relation to the execution of search warrants on members and senators, as suggested by the member for Denison. I should also note that that was a matter that was the subject of comment by the member for Banks and the member for Kingsford Smith.

The bill will also make important amendments to the interception regime to assist agencies to counter measures adopted by persons suspected of serious criminal activity to evade telecommunications interception. People are very conscious today of interception—and I see this all the time in relation to the particular form of warrants that I supervise. There is a high level of awareness among people who may be targeted for investigations about the potential for scrutiny, and they take that into account. It is a situation in which the goalposts are moving.

I would like to think that telecommunications interception could be as effective as it has been in the past, but the concern we have is that, as a useful tool, it is being significantly degraded. These amendments are to allow agencies to respond in part to those changes: to allow them to intercept communications of an associate of a suspect or to intercept communications through a particular piece of equipment. These are designed to give further effect to the recommendations from Mr Blunn and his independent report. They respond to the ever-increasing sophistication in the use of communications technology by people engaged in serious criminal activity.

Interception under these new amendments will only be used as an investigative tool of last resort. I think that is the point that needs to be understood. These are additional controls. They are strict controls. These are only to be available for the investigation of the most serious offences; they are not tools that will be made available for the investigation of minor offences. I note the member for Denison’s comment that the use of B-party interception should be carefully limited. As I have said previously, this bill ensures that, where an agency believes it is necessary to intercept the communications of an associate of a suspect, the agency must demonstrate to a judge or an AAT member that the agency has exhausted all other practical methods of identifying communication services used by the suspect. That point is one I would make to the member for Banks. This is not a situation in which a warrant will be easily obtained; it will be a situation in which there is a very high threshold which has to be satisfied.

The idea that third parties’ conversations should not be intercepted fails to recognise that that happens now. If you, as a member of parliament, happen to ring a person who is a target of an investigation under the existing regime where a warrant has been issued, your conversation—which might be totally about matters relating to your parliamentary duties—could be the subject of interception. The point is that there is a requirement for those forms of conversations to be deleted and for the information not to be readily available for further investigations unrelated to the matters that are the subject of the investigation, unless they disclose an offence which itself carries a significant penalty. B-party interception is to be a tool of last resort, as the member for Newcastle said it should be.

The existing strong safeguards embedded in the interception regime will continue to apply. An interception warrant can only be granted to an agency where the judge or AAT member is satisfied that there are reasonable grounds for suspecting that a particular person is using or likely to use the telecommunications service and—I emphasise this—that information that would be obtained by the interception would be likely to assist in connection with the investigation by the agency of an offence which carries a penalty of seven years of penal servitude. The judge and the AAT member must have regard to the following additional factors: how much the privacy of any person would be likely to be interfered with by the interception; the gravity and the seriousness of the offences being investigated; how much the intercepted information would be likely to assist with the investigation by the agency of the offence and to what extent alternative methods of investigating the offence have been used or are available to the agency; how much the use of such methods would be likely to assist in the investigation by the agency of the offence; and how much the use of such methods would be likely to prejudice the investigation by the agency of the offence. All of these are requirements that have to be met. That is a very important aspect of these matters.

I was surprised at the suggestion from the honourable member for Kingsford Smith that a party that is the subject of a B-party warrant should receive a notice from the authorities of the intention to conduct the interception. I think that is an extraordinary suggestion, because the nature of telecommunications interception, which has long been part of our method of investigating serious criminal offences, is that inherently it is and always has been a covert investigatory tool. Consistent with its covert nature, the use of the interception is tightly regulated in the way that I have mentioned. But the idea that you go out and say to somebody, ‘Don’t use your phone when you’re talking to party-X because it’s the subject of a covert interception’ would totally destroy its efficacy as a tool, I suspect.

The measures in this bill will not only maintain but further strengthen the stringent restrictions on when an interception warrant can be issued to ensure that it only happens in connection with the investigation of very serious offences. The existing restrictions on the use of any intercepted material continue to apply and will, as currently required, have independent oversight and annual reporting to parliament.

I also note the reluctant concession of the member for Denison that B-party interception provisions are necessary, but the member is concerned with the use of intercepted material which will be obtained by intercepting the B-party. If intercepted material reveals information regarding the commission of an offence that was not initially under investigation, that information may be used by the interception agency, providing it meets a three-year penal servitude threshold. This is entirely consistent with the existing arrangements within the interception regime, which enable the use of intercepted material in relation to any criminal offence which meets that three-year threshold. These arrangements ensure that law enforcement agencies and security agencies are not required to turn a blind eye to criminality where the interception warrant initially relates to a different offence. To suggest otherwise would seriously impede the ability of the agencies to utilise this important investigatory tool appropriately and effectively.

In relation to the final comments made by the member for Banks, he did not quote me inappropriately from my second reading speech. But I would say that, in Australia, we have an effective system of monitoring, which includes a robust system of keeping statistics. That there are statistics from which you are able to undertake your evaluation as to the movements that may or may not be occurring is because we do just that. I think the gentleman concerned, Mr O’Gorman in Queensland, argues that your phone is more likely to be tapped in Australia than it is in the United States, and therefore we are doing something inherently wrong.

The point I make is that our statistics are robust; their statistics are not. The argument on the basis of comparing statistics is a flawed argument. If you were to take his formula and use the German classifications, for instance—I have the figures here: the population of Germany is 82 million—you would find that in terms of intercepts one in every 2,841 persons or phones is tapped in Germany. The population in Australia is 20 million. The figure is one in 6,634 phones or persons are tapped. You could argue that somebody is 42 per cent more likely to have their phone tapped in Germany than in Australia, and therefore our figures are comparatively low. That is the nature of the argument. I do not know about the nature of their statistics and what they recall. I do not know whether it is a totally valid comparison, but I would certainly argue that we keep very robust statistics. I do not think we are particularly out of the ordinary in terms of investigating terrorism offences, serious criminal offences and using the appropriate tools to do just that.

The bill reflects a very considered effort by the government to strike an appropriate balance in dealing with the very significant efforts that are undertaken to avoid what are known to be investigatory methods, which include telephone interceptions. With the change in technology that has occurred—particularly in relation to email, SMS, stored communications and the like—they are matters that we have to effectively address, and this legislation provides that mechanism. On that basis, I commend the bill to the House and look forward to the Senate dealing with the matter, before the sunset clause expires.

Question agreed to.

Bill read a second time.

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