Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Link to this | Hansard source

I rise to speak on the Telecommunications (Interception) Amendment Bill 2006. The bill currently before us introduces a number of amendments to the Telecommunications (Interception) Act. The bill aims in part to implement the recommendations arising out of the independent Blunn review into the telecommunications interception regime. Largely, this bill is looking to update the existing act to take account of new technologies such as SMS, email and the like that were not envisaged when the original act was introduced and which have sat with an uncomfortable legal status since they came onto the market. An email or SMS, for instance, is not an instantaneous communication like a phone call. It is composed, stored and transmitted as a complete one-way message rather than existing in real time like a telephone call. This has created some problems for the existing system and the definitions that are in place.

Since 2002 the parliament has struggled four times with the issue of stored communications. The contentious provisions in the Telecommunications Interception Legislation Amendment Bill 2002 were withdrawn after the Senate Legal and Constitutional Legislation Committee recommended against their inclusion. In 2004 the contentious provisions of the 2002 bill made a return. During the committee hearings on this bill it became apparent that the Australian Federal Police were using warrants under section 3L of the Crimes Act to intercept stored communications material from internet service providers. But such was the difference of opinion between the AFP and the Attorney-General’s Department on this matter that the committee recommended the reforms to the telecommunications regime be deferred until there was some unified position from the government.

The final result was that the committee recommended that an independent review of the act occur and imposed a sunset clause on the AFP’s use of general warrants to access such stored communications. The original 2004 bill was thus not pursued, but subsequently the government came back to the parliament with another bill that implemented the committee’s recommendation. Twelve months turned out to be not long enough for Anthony Blunn to conduct his review and for the government to finalise the subsequent legislation. A further six-month extension was granted by the Telecommunications (Interception) Amendment (Stored Communications and Other Measures) Bill 2005, and that extension expires in June of this year. Hence the debate today and some concern to get these changes through the parliament before that time expires.

From Labor’s point of view, the present situation of dealing with such communications is unsatisfactory. Email and SMS messages are available to be intercepted by the general Crimes Act warrants under section 3L. Labor strongly believes in tougher safeguards than are presently available under this regime. As it stands, we have a stopgap measure that will fall over when the clause expires in mid-June, and clearly the parliament does have to act decisively on this issue before that time. The bill before us today seeks to implement a number of recommendations, but not all of the recommendations, of the Blunn review. Because this bill does not represent the total sum of reform recommended by Mr Blunn, we will no doubt be revisiting this issue again in the not too distant future. What is before us today is perhaps as much as the Attorney-General could put together given the deadline to have the bill passed, assented to and proclaimed. In any case, Blunn’s main findings were that:

• the protection of privacy should continue to be a fundamental consideration in, and the starting point for, any legislation providing access to telecommunications for security and law enforcement purposes …

Further:

• access to telecommunications data is, and for the foreseeable future will remain, fundamental to effective security and law enforcement …

This is the prime starting point that Labor also adopts when considering this bill: the balancing of privacy considerations and the need for appropriate access for law enforcement agencies. Significantly, the bill contains provisions to set up a new warrants regime for stored communications. That is a great improvement on the current situation and Labor will be looking during the committee stage to see if it can be improved even further. The bill will also implement equipment based interception. That is a practical and sensible measure which Labor supports.

Perhaps most problematic in terms of the media comment and some of the public concerns that have been raised to date is the concept of B-party intercepts—that is, an intercept of an innocent party who is in regular communication with a person of interest. B-party intercepts are lawful, at least to some extent, now. Their validity has been established in the full court of the Federal Court in a decision of Flanagan v the Commissioner of the Federal Police. Although interpretations of this case vary, it seems that the reasoning has not been sufficiently clear for the Federal Police and the government to feel that they can confidently rely on this in pursuing B-party intercepts further. In any case, we would argue that the restrictions that exist, even if this case is relied upon, do not have the benefit of the protections. Clearly the government agree, given that they have proposed a statutory regime that puts in place some protections for the use of such B-party intercepts.

Mr Blunn, in his independent review, did make comments about B-party communications and recommended that ‘the Interception Act be amended to make it clear that B-party services may be intercepted in limited and controlled circumstances’. That is what this bill does. We can go through in some detail the controlled circumstances that it refers to. It does make it clear that this mechanism should be used only as a last resort by law enforcement agencies. It is not to be used just as a matter of course. These are important principles and protections that Labor believe should be supported. We will pursue any other detailed protections that are required in the Senate committee. If we propose any amendments, as may be possible in the other place when the debate takes place, they will have the benefit of the Senate committee’s review.

Although B-party interceptions have not been used since the case of Flanagan in 1995, it seems that this has been a matter of policy rather than of law. Should the government of the day change that policy, it would mean that we would be back to an open slather situation. As a responsible party, Labor want to grasp the opportunity to limit and carefully control the use of B-party intercepts. We will ensure, as I have said, that this issue is carefully examined during the committee stage and that, if Labor are not satisfied with the safeguards, we will move amendments to ensure that B-party intercepts are used safely, responsibly and with the appropriate privacy controls and safeguards. That is our promise to the community.

The bill also contains technical measures, which are set out in schedules 4 to 6. These measures would amalgamate two different class of offences and remove a redundant accountability provision. Also included are some housekeeping measures that would ensure that the act is up to date. Labor generally support the bill because of its strong emphasis on protecting privacy and the important practical assistance it will give to our law enforcement agents. I think Labor have already referred this bill to the Senate Legal and Constitutional Committee for its consideration so that there is a chance to discuss concerns raised within the debate in this House and within the broader community.

Let me go through some of the detail of the bill. Schedule 1 deals with stored communications. The first schedule in the bill seeks to define stored communications pursuant to recommendations that were made by the Blunn committee. Mr Blunn made a number of findings on this matter. Firstly, he recommended that the distinction between real-time and stored communications be maintained. However, despite calling for the retention of this distinction, the report also found that the act as it is presently structured was not an appropriate vehicle for accessing communications other than real-time communications and that the provisions governing access to stored communications were inadequate and inappropriate. Labor certainly agrees with this assessment. Therefore, the review recommended that access to stored communications continue to be authorised by search warrants but that those warrants be required to meet minimum prescribed standards.

The bill before us today sets up the new warrants regime for intercepting those stored communications. The bill will remove the provisions from a general search warrant and implement tougher provisions similar to those that are current for real-time communications. In effect, the bill will toughen privacy protections, making it harder to get a warrant. This schedule also introduces definitions for stored communications and a regime for access to those stored communications. This includes a general prohibition on access to stored communications; the regime for access to stored communications by law enforcement agencies; the process and regime for issuing, executing and revoking stored communications warrants; provision of technical assistance to a law enforcement agency by staff of a telecommunications carrier; a regime of evidentiary certificates by carriers and law enforcement agencies; an offence to criminalise unauthorised use or communication of accessed information or stored warrant information; a regime of permitted dealings with accessed information; admissibility of evidence; destruction of records unlikely to be used for the purposes of investigation; the regime for keeping of records, including access to that regime by the Ombudsman; the regime for reporting to the minister and the parliament; and civil remedies.

The new regime to be brought in by the bill generally acts to apply the same protections afforded to telecommunications to stored communications. The first schedule of the bill acts to clarify the status of access to stored communications and, at the same time, toughens the privacy provisions required to obtain one.

Schedule 2 deals with B-party intercepts. This schedule clarifies the position of the act on B-party intercepts—an issue that I have already touched upon tonight. A B-party intercept occurs when a law enforcement agency is monitoring person A for criminal activity. Say that person A is in regular contact with another party, person B, who is not the subject of an investigation. Under the present law, it is permissible to obtain a warrant to subject the second person, person B, to an interception in order to obtain information regarding person A.

I have gone through the contentiousness of whether people agree on what the current law is or is not, but I think it is worth flagging that there is some authority for this. Certainly my colleague in the Senate, on whose behalf I am appearing today, is keen to impress upon the House that B-party provisions in this section are not new powers, nor do they expand existing powers, as has been reported in the media. B-party intercept powers already exist and have been upheld by the Federal Court, even if there is some argument over the extent and basis for that decision. It is presently policy not to use those powers; nevertheless, until this case is overturned, they do exist. The bill before us today would, as I have said, impose greater controls than currently exist and would certainly clarify the situation for both the public and law enforcement agencies. Thus, it is an improvement on the current situation.

I turn briefly to the case of Flanagan v the Australian Federal Police because it seems to contain the key precedent relating to telecommunications interception. It was a 1996 Federal Court case. In that case there was a telecommunications interception warrant aimed at gathering information regarding a Mr Flanagan—or the A-party—but the subscriber to the service was his wife. So, in effect, she was the subject of the monitoring and was the B-party. In the ensuing court case, they alleged that the issued warrant was invalid because it had gone beyond the Telecommunications (Interception) Act as it then stood. However, the Federal Court rejected that argument, stating:

Until a communication to or from a service has been intercepted and recorded, it is impossible to know whether it would be likely to assist in an investigation, or even to identify the parties to the communication. If warrants were confined to authorising the interception of communications to which the particular person could be identified at the outset as a party, they would lose much of their efficacy. This cannot have been intended.

The court further stated:

There is no requirement that the prescribed offence be one in which the particular person contemplated by s 46(1) is involved.

So all communications made to and from the telecommunication service—even though the subscriber was the B-party, Mrs Flanagan—were held to be valid. I repeat: the idea that B-party intercepts are totally new is incorrect. However, the new regime does define and limit the applicability of B-party intercepts. B-party intercepts will only be available in circumstances involving investigations of an offence punishable by at least seven years imprisonment. Items 8 and 9 further restrict the use of these warrants to circumstances in which the applying agency has satisfied the issuing authority that all other methods of identifying the telecommunications used have been exhausted and that an interception would not otherwise be possible.

So the new regime covering B-party intercepts, rather than being an unjustified extension of existing powers, or a creation of entirely new powers—as some people have alleged—is and can be regarded as a limitation and clarification of existing powers. It can be seen to restrict, rather than expand, the B-party intercept powers. Nevertheless, as an aside, by spelling this out in the legislation, it must be acknowledged that it is possible that now the AFP may make more use of these powers, once they have been clarified in the legislation.

I think it is important that a Senate committee investigate these issues further to make an assessment on whether the extent of the provisions is necessary and appropriate and is balanced with the sorts of protections that both the government and the Labor Party have said they are keen to see put in place. I have a lot of confidence in the Senate committee process as being a good way to flesh out some of these highly technical issues, particularly given that the committee has already dealt with the Telecommunications Act and some proposals that cover these areas on several occasions. It seems that there is a fair amount of expertise that resides in that committee, and we look forward to the recommendations that it might make.

Schedule 3 of the bill imposes changes in equipment based interception. This is a technical change to allow the law enforcement agencies to apply for warrants for communications from a specific device rather than warrants for communications from a person. What happens—as I think has been mentioned in the explanatory memorandum—is that a person of interest can buy a mobile phone and potentially use hundreds of different SIM cards at low or no cost which they then switch through their phone. Naturally, this makes it very difficult for a law enforcement agency to identify and intercept communications belonging to that person based on a SIM card.

The amended changes would, as I have mentioned before, allow for law enforcement agencies to target the phone and to intercept communications arising out of that phone or other terminal device. This amendment would serve to make it less practical and less economical for a person of interest to evade interception through their exploitation of technology and would therefore, we hope, enhance law enforcement chances of interception.

The three schedules that I have just mentioned are the main amendments to the act contained in this bill. There are another three schedules in the bill that are largely designed to enact technical changes to the bill. Schedule 4 deals with class 1 and class 2 offences and removes the distinction between those classes. Previously, the act divided offences into these two classes and required that only class 2 offences be subject to privacy considerations by the issuing authority.

However, the Blunn review questioned this distinction, finding that it produced no meaningful difference in outcomes and recommended their removal. The current bill accomplishes this, abolishing the two definitions and placing both of them under the new definition of ‘serious offences’. Both types of offences are now subject to privacy considerations.

Again, essentially, this is an enhancement of the privacy provisions of the bill. Under the previous regime, only class 2 offences were subject to those considerations. Under this regime, all requests for warrants of telecommunications interceptions will be subject to these considerations. Again, Labor will support these changes, subject to any recommendations that arise out of the committee process.

Schedule 5 operates to remove the Telecommunications Interception Remote Authority Connection, or TIRAC, from the act. The Blunn review found that the TIRAC regime was costly but had a very low rate of detecting warrant errors. The review recommended that the powers of TIRAC be moved to the Attorney-General’s Department. For the benefit of the House, I quote from the explanatory memorandum:

TIRAC is a historical electronic accountability mechanism which requires each interception agency to lodge its interception warrants with the AFP.  The effect of this function is that the warrants do not take effect until the AFP receives the warrant and notifies the Managing Director of the carrier of the issue of the warrant.  TIRAC’s utility has been exhausted by technological developments, and it is therefore proposed that it be removed from the Act. 

The proposed amendments will continue to require all agencies to maintain comprehensive records as part of the interception regime, however, interception agencies will no longer be required to notify the AFP of the issue of the warrant before it takes effect. 

Essentially, these amendments act to move a number of the functions of TIRAC to the Attorney-General’s Department and to remove others from the act. As noted above, TIRAC has, since its inception, been superseded by technological developments, and it seems that the proposed change is appropriate.

Finally, schedule 6 of the bill introduces a number of technical amendments to the act. These are largely housekeeping measures designed to tidy up the act and ensure that it is up to date. These amendments include extending the powers available to the Victorian Office of Police Integrity under the act to allow them to disclose intercepted information in limited circumstances relating to the investigation of officers under various anti-corruption statutes. The amendments also include a number of other minor consequential amendments and corrections of drafting errors.

The bill before us is a necessary update of the technically antiquated legislation that currently covers telecommunications interceptions. Significantly, the bill will provide a new regime for the interception of stored communications, affording them the same protections that are currently afforded for real-time communications and strengthening the privacy provisions of the regime. Secondly, the bill will clarify the position of B-party intercepts. This, rather than adding a new power, will actually serve to limit the scope of these intercepts. They will only be allowed in cases of severe offences and in cases where all other options have been exhausted. This enhances rather than diminishes the current privacy protections afforded under the warrant.

The bill also introduces the ability for law enforcement agencies to apply for equipment based warrants. This is a necessary update to an act which was written at a time when landline based telephones were the primary means of telecommunications. It will provide an important tool against efforts to frustrate law enforcement through the use of newly developed technology loopholes in the present regime. Finally, the bill contains a number of housekeeping measures. It cleans up some functions that the AFP exercises, moving them over to the Attorney-General’s Department, and it eliminates an obsolete distinction between two classes of offences.

Through these measures, the overall thrust of the bill is to provide a necessary update to ensure that law enforcement agencies, when they are using the telecommunications interception regime, are able to better balance privacy concerns with the needs of those law enforcement agencies to access information, and also to update the regime to account for new technologies that were not developed or envisaged at the time of the original act. I conclude my remarks by reiterating Labor’s intention to consider whether the bill can be improved further through the scrutiny of the Senate committee process and through possible amendments in the Senate. With those remarks, I commend the bill to the House.

Steven Ciobo (Moncrieff, Liberal Party) Share this | Link to this | Hansard source

I am pleased to rise to speak this evening on the Telecommunications (Interception) Amendment Bill 2006. This bill implements a number of recommendations of the Report of the review of the regulation of access to communications under the Telecommunications (Interception) Act 1979 that was conducted by Tony Blunn, commonly referred to as the Blunn report. I am pleased to speak to this piece of legislation because it does go some way towards ensuring that there is an adequate framework in place to assist our law enforcement agencies to deal with those various issues and investigations that they must undertake—those types of investigations which help to prevent criminal activity and help to crack down on criminal activity—as well as ensuring that there is safety in the community: the kind of safety that I know residents in my electorate of Moncrieff are looking for and expect the government to deliver to them.

This bill is the subject of debate in this chamber, and I am pleased to hear, in the main, positive comments coming from the Australian Labor Party about the three principal limbs that I will be discussing tonight—that is, the stored communications warrant regime, B-party interception and equipment based interception. On these three fronts, I welcome the broad level of support that the Australian Labor Party has indicated that it will be providing. I note, of course, that this support is in some way laden with a caveat, coming from the fact that the shadow minister indicated that the Australian Labor Party would be looking more closely at this in the committee stage when the bill goes to the other place. Notwithstanding that once again there seems to be some equivocation about whether or not to support the legislation, to the extent that that support is forthcoming, I certainly welcome it.

These amendments, as I said, go some way towards ensuring that there is in place an appropriate and adequate framework that will apply to the various agencies that need to conduct their activities under this act. Dealing with the Blunn report recommendations, which outline the need for overarching legislation regulating access to all forms of electronic communication, this bill establishes two of the three limbs that were proposed to be part of that overarching legislation, dealing with access to stored communications and an amended interception regime that incorporates, in effect, the majority of the existing Telecommunications (Interception) Act 1979. The third limb is regulating access to telecommunications data, and the government expect, as we have outlined, to be making further amendments in due course.

With respect to the stored communications warrant regime, the Telecommunications (Interception) Amendment (Stored Communications) Act 2004 does allow stored communications such as email and SMS that have been delivered to the recipient to be accessed without a telecommunications interception warrant. Those amendments, as the government foreshadowed and outlined, were intended as an interim measure pending the Blunn review. Accordingly, they sunset in June this year, as the shadow minister indicated.

Schedule 1 of this bill creates a new stored communications regime that is centred on a prohibition on access to stored communications held by a telecommunications carrier, and a stored communications warrant regime. A stored communications warrant will be available to enforcement agencies that are investigating an offence punishable by a maximum period of imprisonment of at least three years or an equivalent pecuniary penalty. The threshold covers a broad range of serious offences and is the same as that outlined in the Surveillance Devices Act 2004. Once accessed, stored communications can only be used or communicated for a purpose connected with the investigation of an offence that is punishable by a maximum period of imprisonment of one year or the equivalent pecuniary penalty.

The regime that is outlined in this bill will strictly regulate the use, communication and recording of information that is obtained by various agencies in accessing stored communications. This is consistent with the current use and communication of intercepted communications, so in that regard this bill simply provides an extension of the existing framework. Information obtained by accessing stored communications, as I outlined, will also be able to be used, but only where there is an offence that is punishable by a maximum period of imprisonment of one year or a pecuniary penalty of at least 60 penalty units.

The more controversial aspect of this bill is, of course, that dealing with B-party warrants. We have seen in recent times a great deal of media scrutiny and indeed a significant amount of media comment and stakeholder comment about B-party warrants. As the shadow minister outlined, B-party warrants are not entirely new. There has been some degree of their use in regard to activities by various agencies.

I notice the member for La Trobe is in the chamber. He certainly has a great deal of experience in and practical application of the various requirements of enforcement agencies to adequately fight against those who would seek to subvert our way of life. I will certainly welcome the comments of the member for La Trobe, who I know is a passionate advocate of these types of laws and recognises that we need to provide adequate tools for law enforcement agencies to function appropriately and provide adequate safeguards to the community at large.

The B-party interception framework as outlined in this bill relates to the interception of communications of a person who may not be involved in the commission of an offence but who will communicate with a person involved in the commission of the offence. Such a situation commonly arises, I am informed, in undercover operations where it may be necessary to intercept the service of an undercover police officer. Of course, it is recognised that generally there would be consent involved, but irrespective of that it is appropriate to have a B-party interception regime in place. The amendments provide that, where an interception agency satisfies an issuing authority that all practicable methods of identifying a telecommunications service used by the person of interest have been exhausted or that it is not possible to intercept the service used by the person of interest, the agency may intercept the telecommunications service used by another person.

This amendment has been the subject of much media debate and concern by certain members of the community. Indeed, I harboured some concerns when this issue was first raised with me. However, on balance, when one considers the necessity for agencies to utilise various legislative tools in order to focus their efforts on criminals engaged in criminal activity, it seems to me appropriate that, with adequate safeguards that set in place the necessary limits that must be met by enforcement agencies, a B-party interception warrant need not be considered an overly intrusive incursion into one’s privacy. Granted, prima facie it does appear that innocent third parties can have their telecommunications intercepted. In reality, this would only occur—as section 9(3a) clearly provides—when the Attorney-General has ensured that there has been an exhaustion of all other practicable methods of interception of the telecommunications of the person in whom law enforcement agencies are interested.

Given that the threshold is that agencies have used and exhausted all other practicable methods, the question then becomes one of: do we as a government sit back and allow those who are technologically savvy or criminals engaged in criminal enterprise who have found some other way to avoid detection, scrutiny or interception by various government agencies to continue their activities outside the bounds of the law? On balance, given the appropriate threshold is in place, which is that all other practicable methods have been exhausted, I am of the view that it is appropriate to allow B-party interception warrants. Furthermore, given that at common law there already exists the ability for this to occur in limited circumstances, it seems prudent and wise for the government to legislate for a framework that very explicitly outlines the criteria that must be taken into account with respect to the issuing of a B-party interception warrant. More importantly, there are the various factors that the Attorney-General and, indeed, the courts must satisfy themselves of before a B-party interception warrant could be authorised.

For example, the issuing authority must also have regard to the following additional factors: the gravity or seriousness of the offences being investigated; how much the privacy of any person would be likely to be interfered with through the interception; how much the intercepted information would be likely to assist with the investigation by the agency of the offence; how much the use of such methods would be likely to assist in the investigation by the agency of the offence; to what extent alternative methods of investigating the offence have been used by, or are available to, the agency; and how much the use of such methods would be likely to prejudice the investigation by the agency of the offence.

Taking these issues into account, I am satisfied that a B-party warrant in the regime that this bill seeks to put in place would contain appropriate safeguards to one’s privacy but, at the same time, remove the shackles that currently exist due to agencies not having the full scope of powers to give them sufficient opportunity to intercept the telecommunications of those involved in criminal enterprise.

The third, and perhaps less controversial, aspect of the bill is equipment based interception. This is relatively straightforward. It deals with those instances where the various agencies—the Federal Police and ASIO, for example—need to intercept equipment. As the shadow minister has detailed, you might have a situation where someone engaged in criminal or terrorist activity is using a number of different SIM cards on a mobile phone to try to evade interception. This bill would enable interception of the actual equipment. So, although various SIM cards might be used in the equipment, the piece of equipment itself could be intercepted, thereby ensuring that agencies with an interest in that person have the ability, where the criteria have been satisfied for the equipment based inception warrant, to intercept that equipment.

There are a number of housekeeping matters in the bill which I do not intend to touch upon as the Attorney-General and the shadow minister have done so already. I would summarise, though, by saying that concerns have been raised that there is 26 times more chance of someone having their telephone intercepted in Australia than, for example, in the United States. This kind of comparison is completely unrealistic and completely wrong. The United States differs to Australia in a number of significant ways. Direct comparisons between Australian and US statistics are therefore entirely misleading.

Statistics from the United States published on interceptions do not include those interceptions that are considered too sensitive to be reported. That is the first point of difference with the Australian system. Investigators in Australia do not have the discretion to not report certain interceptions regardless of the level of sensitivity surrounding them. In addition, United States law allows one warrant to authorise the interception of services used by a number of people: for example, when it becomes possible to identify criminal associates of the original suspect. Again, this stands in stark contrast to the situation in Australia in which a warrant must be authorised for the telecommunications service or services of only one person who is named in that particular warrant. That is another significant difference between the collection and collation of statistics in Australia and in the United States when it comes to interception.

Although there will be those who will run the scare campaign in the community that the passage of this bill is effectively signing away the right to privacy and is further fuel on the fire that allows government agencies to intercept telecommunications at will, those assertions are incorrect. The reality is that this bill puts in place a framework that is able to be used by both law enforcement agencies and the public more broadly. It establishes a framework that clearly outlines the various threshold requirements as to when a warrant is able to be issued and the various points that must be considered. With respect to B-party warrants, this bill ensures that there are adequate safeguards. Further, it moves from common law to statutory law a point of view that specifies that all other practical methods must have been exhausted. I welcome these reforms. I think it is important that there be in place a strong framework which enables the government and its agencies to effectively operate to ensure the safety and security of the community at large and at the same time affords to our various investigative agencies the kinds of powers that they need to do their job appropriately but without sacrificing those liberties which so many of us hold dear. I commend the bill to the House and I look forward to the Australian Labor Party supporting this bill in its current form as it moves through the Senate and its various committee stages.

Duncan Kerr (Denison, Australian Labor Party) Share this | Link to this | Hansard source

There are significant elements of the Telecommunications (Interception) Amendment Bill 2006 to be welcomed, but I think it is important for me to set out some of the concerns I have and am certain are shared more broadly throughout many sectors of the community and on both sides of this House with respect to the detail. There is no doubt that the motivation for this legislation is well based and many of the initiatives will clarify the entitlement of law enforcement to secure information that is required for proper law enforcement purposes. In making those circumstances transparent and setting out clearly the manner in which interceptions can be undertaken in respect of a number of areas which presently lack sufficient clarity, the intention of the minister, the government and the opposition, in indicating its support for the general approach, is to be welcomed. But I do want to draw attention to some of the areas which require the further consideration of this parliament. I note that this legislation will be subject to further review by the Senate Legal and Constitutional Legislation Committee, and the remarks I make now are in the context that I hope the issues I raise are taken into account by those participating, and I intend to forward the text of these remarks to that committee to be taken into account as a submission in their deliberations.

The first issue I want to turn to by way of expressing concern goes to the question of stored communications. It is certainly true that one of the issues that has confronted law enforcement is how to effectively deal with communications which are carried in an electronic form that are not the traditional voice messages carried over phone lines. The telecommunications interception regime that was put in place in 1979 envisaged handsets connected by copper wire hardlines and set out a regime at first limited to a very narrow range of offences and available only to Commonwealth law enforcement agencies but subsequently extended to a much wider range of offences and permitted to be utilised by state and territory law enforcement agencies and a range of commissions charged with the responsibility for anticorruption matters.

These extensions have each been deliberated upon and considered, but one of the technological innovations that has occurred of course is the growing use of electronic transmissions to carry not only voice messages but also text messages and stored communications. We all use mobile phones whereby we receive text messages transmitted to us by friends, colleagues and acquaintances. We often use hand-held devices—BlackBerries and the like—to communicate not only short messages but also messages which include attachments and to file and store large amounts of documentation.

My concern is that we are not putting in place the same strict regime for accessing this so-called stored communication as we do for regulating the interception of telecommunications that are voice messages over hardlines. The tests we have enacted to permit access to interception of voice transmissions remain very high. The regime is not one which, in my view, is capable of being easily subverted by those who would be frivolous about seeking to utilise such interception methods. But the proposed test in respect of stored communications is much lower. I am troubled by the reasoning behind the proposition that my privacy is much less intruded upon if the message I receive on my mobile phone or a message that is transferred through a BlackBerry and an email attachment is intercepted covertly, unknown to me. Why should the test be lower in those circumstances than it would be for an interception of a voice transmission?

I think the argument is put that a lower test is appropriate because it is more in the nature of a search warrant that could be issued under the various search warrants legislation for hard copy material—that is, the test ought be more analogous to the kind of test that would apply were, for example, a search to be authorised of a person’s office or home for materials that were suspected of being evidence in relation to a possible crime. The problem with that analogy is that, in the large majority of—almost all—instances where search warrants are pursued, the person against whom the search warrant is issued comes to learn of its issue and can contest the issue of the warrant on the basis that it was issued improperly. In relation to the materials that have been the subject of seizure, they can make claims of legal professional privilege or, in the instance of members of parliament, parliamentary privilege. There is a range of other circumstances in which people can properly raise those objections to an overwide use of those powers.

But, in the case of the interception of stored communications, it is much in the nature of a telephone interception: you do not come to know of it. So it is a covert interception. As we move more and more of our business from paper based to electronic storage of information, what we are effectively doing is permitting, at a much lower test, covert interception of large amounts of stored materials. It is a test which is not examinable in the same way as ordinary search warrants are and with a lesser threshold to meet than we insist upon with voice communication. I think this is quite troubling and I suggest that the Senate have a look at this. Two possible solutions commend themselves. One would be to have the same high-level test for the seizures of covertly obtained materials where a warrant for stored communications is sought; the other would be to require, where the lesser test applies, the person to be notified of the collection as one would normally find out about the implementation of the search warrant so that the ordinary claims for privilege and the various other entitlements to challenge the issue of the warrant, the legality of it and the grounds for it can be pursued.

It seems to me that we are introducing effectively a much more comprehensive regime to permit access to substantial amounts of electronically stored material, which is now the most common form of commerce, in a way which does not give the traditional safeguards to those against whom the decision was made. I might say in respect of one matter of most moment to members of this parliament that it would bypass the arrangements that have been entered into between the Speaker and the President of the Senate and the Australian Federal Police regarding seizures of materials relating to parliamentarians’ conduct of their business in this House. Presently, there is an arrangement in relation to the exercise of a search warrant which enables members to make properly founded claims for privilege, to have those claims examined and to have the warrant dealt with in a manner which accommodates those entitlements. That, of course, could not occur if the member does not know that they have been the subject of an interception. And, in a like manner, the entitlements the ordinary citizen has to make: claims of legal professional privilege or to challenge the evidential and legal basis for the issue of a warrant, to claim that it has been issued in circumstances where it is impermissible to issue it, is not available simply because they do not know that the seizure has occurred. I put these arguments forward on the basis of long experience as to how these matters do operate, having served myself for three years as Minister for Justice responsible for the Australian Federal Police in this parliament and previously having had responsibility for arguing a number of cases before superior courts about the validity of warrants issued in relation to searches and seizures.

The second point that I turn to is a point that has been given a greater degree of attention than that which I have just discussed, and that is the so-called B-party warrants. These are extremely contentious because, for the first time, our law will permit an issuing authority to authorise the interception not of the phone service used by a person against whom a suspicion is held but of any innocent third party against whom no such grounds are established in order that they might incidentally collect through that means the communications of the person against whom the suspicion is held. I have given earnest thought to the justification for this, and reluctantly I accept that there is a proper basis for permitting the use of B-party warrants but would like to see far greater safeguards than are presently encompassed in the legislation. Why have I conceded that it may be legitimate to use B-party warrants? I might say that the euphemism of a B-party warrant is something that I find a little offensive. They should be called ‘innocent third party warrants’ or ‘third party warrants’ because I think that by the use of such language we really do not come to the gravamen of the point. But it is a truth that, as we have gone now over 25 years since first authorising telephonic interception, not only has law enforcement come to rely on them and use them more effectively but so too have those against whom they are sought and directed become somewhat smarter in their capacity to hide their communications from the authorities.

I do not think it is giving away any great law enforcement secrets to mention the fact that there are people out there, ‘smarties’, who are trying to switch hand-services and chips on a regular basis so that it is difficult to find out what service they are using and to follow and trace the calls they are making. If that is a practical problem in tracing and identifying the telecommunications of persons against whom warrants would lawfully be issued, I think it is reasonable for this parliament to say: ‘In those circumstances we will permit the collection. If we can’t get at this through ordinary means, we will permit law enforcement to seek authority to tap the phones, to intercept the communications, of persons we believe they are in communication with—third parties.’ It may be lawyers, it may be accountants, it may be family, it may be friends, it may be people with whom they have business relations of an innocent kind or it may be parliamentarians whose constituents are suspected of particular conduct. With this means of tracing these innocent third parties, intercepting the calls of the innocent third parties, we can find out what the target is seeking to do, identify the phone services they are using, where they reside, what they are doing and follow their conduct, and, hopefully, obtain evidence that may be material to either preventing crime or prosecuting it.

The problem I see, however, is that there is a very grave risk that, in permitting this, we are going to open up a whole range of collateral material to intrusion, investigation and collection that we do not intend to bring into the net. It seems to me that if the government’s purpose is not to expand the right of law enforcement to seek warrants against innocent third parties per se so that their communications are not only with the suspected wrongdoer but with other parties—let us assume party A is a suspected wrongdoer and party B is known to have some contact with that person but against whom there is no suspicion of wrongdoing; you could not normally issue a warrant against party B—this legislation will now permit that but will bring into the net all the communications between parties B, C, D, E and F and all the people they call.

If the real intent of this legislation is to collect material that is being evaded because party A is using sophisticated means to prevent the detection of their communications, let us allow that but make certain that we quarantine the communications to those which would have been lawful under the previous interception regime had it been possible to collect the material by direct interception of party A. Let us not open up the possibility of innocent third parties being now roped into a very much expanded net of telecommunications which we have never intended in this parliament to open up.

If it is the government’s intention simply to make certain that evasion is not possible through the means that are currently being adopted, we should quarantine third party communications so that the subsequent communications between parties B, C, D, E and F must not be collected, must not be held, and that material that might otherwise be available were it collected is made subject to both use and indemnity use privilege so that it cannot be used as evidence. If we are seeking to make certain our regime is effective so that it cannot be avoided, we should not be opening up a regime that exposes a whole range of additional people against whom law enforcement has no proper basis for seeking warrants to the whole of their communications with a whole range of other people which would not have been available to the law enforcement agency previously in such a way.

So I think the onus is on the government to tell us why, if they are not prepared to accept that proposition, they want to be able to use this further material far beyond that which they have asserted is the reason for this B-party regime. If the B-party regime is intended to allow the collection against party A, and that is all the communication between A and B—that is, communication that would have been capable of collection if party A had not avoided the warrant—it should not be a basis for extending the regime against parties whose communications would not be the subject of warrant because, under the law as it stands, there would be no proper basis for its collection. We should not be opening this up further.

This is not an issue of addressing a problem that currently is a common-law issue. That is a nonsense argument that has been put forward. The only lawful basis for the interception of a telephone service in Australia now is under the Telecommunications (Interception) Act. There is no basis whatsoever to suggest that there is a common-law right for third party, B-party, interceptions. That is an absolutely absurd red herring that has been thrown into this debate—I do not understand on what legal basis or proposition—by members on the other side. It is a nonsense.

With those remarks, I accept that we do need to clarify the way in which we address some of these issues, but I do not think that the safeguards that have been put in place are consistent with the understanding that the government has advanced for the rationale and the protection of the broader community interests that are also as important as making certain that law enforcement cannot be avoided. I accept, as somebody who has had the responsibility, that high levels of government and law enforcement must be made efficient and effective, but I also believe that this parliament has a high responsibility for protecting individual rights. (Time expired)

Jason Wood (La Trobe, Liberal Party) Share this | Link to this | Hansard source

I rise to speak on the Telecommunications (Interception) Amendment Bill 2006 and recommendations put forward by the independent Blunn review. Australia enjoys a culture that respects personal privacy. Every Australian values their right to have private conversations. Under current legislation the government is responsible for ensuring its citizens’ privacy is protected—protection which I, as an Australian citizen, value just as much as anybody else. This interception bill will not change that. But first let me tell you a bit about my background and why I am so keen to participate in this debate.

I was formerly a member of the Victorian Police Force for 17 years—seven years as a detective, including four years service at the organised crime squad, where the crew which I was a member of investigated serious crime networks, including the notorious Carlton crew in Melbourne, which has a reduced membership due to the underworld killings. In my experience, one of our biggest problems is the evolution of technology and the criminal community’s growing ability to use technology to their advantage in evading police.

The criminals—and I know this—watch TV crime shows like LA Law and CSI simply to learn skills in forensic crime techniques to avoid detection. Criminals have become experts from law enforcement tools such as DNA, listening devices and telephone intercepts. I should also point out that crime shows have it easy. I am always impressed how in a 30-minute episode a homicide, rape or drug case can be solved, with a major twist at the end to conclude the episode—but, importantly, with a confession just to let the viewers know they have got their man.

In reality this rarely happens. The majority of homicide investigations take weeks, months and sometimes years to complete. Detectives dedicate every breath they take to solving serious crimes, and that is why this legislation is so important. In reality, crime shows are well off the mark, but I can understand why. Good television does not consist of a detective slugging away on a keyboard preparing an affidavit for an entire episode. It would take 50 episodes to cover a detective just compiling one warrant for a complex investigation to put together a telephone intercept, which most likely would comprise at least 30 pages. Why such long affidavits? Simply, the matter must go before a judge and the judge must be absolutely satisfied that the criminal is linked to the crime before he will grant a warrant.

In the Victorian Police the affidavits go back and forth from the investigation team to the special project unit, where the affidavit is subjected to checks and double checks. Once the special project unit is satisfied that all criteria are met, the warrant is again checked by the legal advisers office within the Victorian Police Force. The final step is to take the affidavit and warrant to the Supreme Court’s administrative appeals tribunal, where an independent judge determines whether there are sufficient grounds to grant a warrant. I was listening with interest to the member for Dennison’s comments about the process and how it sounded like it was easy to obtain a warrant. In actual fact it is exceptionally difficult. Police must satisfy exceptionally high standards before a judge will issue a warrant.

Such a cumbersome, time consuming process does impact upon police investigations. I recall in July 1996, while I was a detective at the organised crime squad, a listening device affidavit being prepared over several days. I recall the affidavit was near completion but still needed to go through the rigorous tests of the special project unit. The target for this warrant was Mat Thomas, who at the time was the driver for the now deceased Alphonse Gangitano. Our intention was to install a listening device in the car of Thomas but, because of the high standard of proof required in the affidavit, more preparation time was required. On Sunday, 14 July 1996, a week after starting to compile the affidavit, Mat Thomas drove his Mercedes Benz to the Gatto Nero Bar. When he left, Raymond Oueinati was found dead, kicked to death. Thomas was one of several suspects and was charged with the murder, but was subsequently acquitted. Thomas would say he was innocent. I say he was acquitted of murder. I remember the Monday following the murder and the frustration faced by members of the organised crime squad—knowing that, were the process for obtaining the warrant made easier, what additional information would have been obtained and supplied to the jury had police had a listening device installed in Thomas’s car immediately after the death of Oueinati.

I make the point that police investigations are all about timing. The quicker police can respond, the greater the likelihood of solving crimes. The longer it takes for police to prepare affidavits for listening devices and telephone intercepts, the longer the suspect is able to prepare and calm their nerves and be mindful of what they say. Those in this House who believe the issuing of a warrant is a tick and flick exercise have no idea of the reality of how difficult this task really is and the high legal benchmark that is required.

Other important aspects of this bill under ‘B-party interceptions’ will allow police to cater for criminals who phone swap. This is a simple technique. Again, at the organised crime squad, on numerous occasions the prime target would have dinner with associates and would make calls from the phone of an associate. The prime target would be aware that most likely their own phone was tapped but would also be aware that police would not be able to intercept the phone calls made on the associate’s phone. This legislation will fill that hole and enable police to predetermine what the target will do and intercept crime related calls made by them on the phone of an associate.

B-party interceptions in this legislation could also be used by police to counter criminals who use public phones to call associates. I ask you: why would a drug trafficker stop day after day to make phone calls from a public phone to the same person but never from their own mobile phone? Simply, they are up to no good. But, until this legislation goes through, police only have the ability to monitor the drug trafficker’s phone, not the associate whose phone they have called from the public phone. In fact, I would go as far as to say that the current legislative framework actually protects these modern day criminals from having their illegitimate communications intercepted, simply because of the high legislative benchmark that is needed to be reached before police can obtain a warrant.

It is undoubtedly important to ensure that the interception capabilities of the police are balanced against the protection of Australian citizens’ right to privacy. This is greatly important. But there is a huge benchmark required to be reached by police to take out warrants and they must satisfy a judge. In conclusion, I strongly support this bill.

Debate interrupted.