Thursday, 30 March 2006
Telecommunications (Interception) Amendment Bill 2006
I move Democrat amendment (30) on sheet 4869, which opposes schedule 3 in the following terms:
(30) Schedule 3, page 64 (line 2), TO BE OPPOSED.
This item is in relation to equipment based interception. This is an area that is still surrounded by uncertainties and confusion, as I think most of those who were engaged in the committee deliberations would understand. I note that earlier today when the minister was talking about the Blunn report, he used it as the motivator and the basis for this legislation. But, at the same time, when we came up with areas where perhaps the Blunn report recommendations were not followed, I think the minister at one stage talked about not ‘slavishly’ following a particular report, in this instance, the Blunn report. I know I asked the minister today where Blunn recommended equipment based warrants. His response was to refer to the quote in the report where Blunn refers to the unique identifiers.
The Australian Democrats believe that we should go back to the drawing board on this one. There is the review process and other opportunities for the government to analyse the effectiveness of equipment based warrants. We know that even some of the best minds dealing with technology in Australia today were unable to understand how these warrants would work or, indeed, if they would work at all. We heard evidence from Electronic Frontiers Australia, who were confused as to how the warrants would operate. I note that the Blunn report recommended—and I know the minister used this quote as well—that:
... priority be given to developing a unique and indelible identifier of the source of telecommunications and therefore as a basis of access.
We happen to believe that the government has actually moved away from the recommendation of the expert reports which it commissioned. As a consequence, it has introduced a piece of legislation and an aspect to it, and some groups, and I suggest some people in this place, cannot work out the scope of its operation. I do not believe the Blunn report, the motivator for introducing this legislation—and there are some necessary updates to the telecommunications interception law—specifically recommended the introduction of equipment based warrants. We are very concerned about their technological application—whether they will actually work. We are concerned about the fact that the government and some agencies do not seem to have worked it out either. Therefore, we suggest that the government removes this schedule from the legislation and considers, during its review process or over the next weeks and months, a better way of implementing the intent of the equipment based warrants.
I have difficulty finding any evidence that supports the equipment based interception warrants. I think in particular the evidence provided by the EFA should be referred to. In their submission they state:
This proposal appears to have an inappropriately and unjustifiably high potential to result in interception of communications of persons who are not suspects (i.e. are not named in the warrant) because, among other things, the types of device numbers proposed to be used do not necessarily uniquely identify a particular device.
I asked the Deputy Privacy Commissioner, Mr Timothy Pilgrim, about a comment in his written submission which states:
The Office has not been able to fully determine the limits to the scope of the operation of Schedule 3 ...
Mr Pilgrim said:
... it is an issue that we have been grappling with and, given our time to be able to devote to issues such as this, have not been able to fully explore ... What we are not able to grapple with—or have not had time to grapple with—is how that might be broadly applied in various scenarios.
That is in relation to equipment based warrants and the scope of the operation of that particular schedule.
We note again for the record that Blunn did not recommend the introduction of equipment based warrants. In fact, discussion in that report—and it is exemplified by the quote that both the minister and I have used—highlights the difficulties of accurately identifying a person through the use of international mobile service identifiers or such similar identification numbers. Again, the Democrats believe the operation of schedule 3 in its current form is not worked out and not tenable. We believe that at a minimum it needs to be referred for further discussion. The intent of this amendment is to ensure that equipment based warrants are not introduced and are not able to operate until we have more information and certainly more safeguards.