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

I think I will follow Senator Ludwig’s lead. I also seek leave to incorporate my speech to this legislation in Hansard.

Leave granted.

The speech read as follows—

This Bill represents the second tranche of the Government’s response to the Blunn Review conducted in 2005. A key recommendation of the Blunn Review was to establish a single, consolidated piece of legislation which deals with access to telecommunications data for security and law enforcement purposes.

The Democrats consider that consolidation of security related legislation is a positive development. In a small way it may alleviate some of the problems that we have seen with the piecemeal development’ of the Government’s security related legislation in general.

That approach has cumulatively removed individual rights to the extent where even law enforcement agencies are ill-equipped to deal with their extraordinary powers, as was all too readily apparent with the Dr Haneef affair.

Several aspects of the Bill are largely uncontroversial and amount to little more than a transfer of existing provisions from the Telecommunications Act. Some aspects of the Bill go further and amount to an improvement to the existing regime. Under the Bill, voluntary disclosure provisions have been clarified to the extent that it is now explicit that the provisions do not cover the substance or contents of a communication.

However, we believe that other aspects of the Bill create intelligence gathering powers for intelligence and law enforcement agencies on an entirely new basis and other aspects pay scant regard to fundamental principals of personal privacy. In respect of these provisions the Democrats are opposed to the Bill and will move several amendments to ameliorate its worst aspects.

Interpretation issues—‘enforcement agency’ and ‘telecommunications data’

The legislation gives enormous powers to law enforcement agencies to monitor the private conversations of Australians.

Privacy is a fundamental human right, and Parliament has a duty to limit the violation of this right to only those situations where exceptional circumstances justify it. In this respect, we must be careful to limit the powers to only those agencies that can positively justify being vested with them.

As the Chair of the Senate Committee noted in his report, CrimTrac is one agency that has been unable to justify its vesting with such powers. CrimTrac is not a law enforcement agency authorised to conduct investigations into suspected offences except in limited circumstances related to spent conviction legislation.

As such we consider that CrimTrac should be removed from the definition of ‘enforcement agency’ and we will be moving amendments to that effect.

Another area of concern to the democrats is the lack of a clear definition for ‘telecommunications data’.

The Government must respond to the trend has seen current and emerging communications technologies merge areas that have traditionally been separately regulated.

During the course of the Senate inquiry, various examples of converging technologies were discussed including, web browsing, downloading from the internet, entering chat rooms, sharing emails, taking digital photographs and video footage and playing MP3 files all from a mobile telephone. Questions were raised as to what information captured can properly be considered telecommunications data.

The Democrats consider that the best way to deal with these new technologies is to give certainty as to whether or not the information they produce can be categorised as telecommunications data. This is something which the Attorney-General’s Department appears reluctant to do.

The Attorney-General’s Department has stated that they are ‘concerned about defining technology and call associated data now because the definition might be redundant in 12 months time’.  The Democrats are dissatisfied with this reason.

As a matter of public policy, it is desirable to clarify what is meant by telecommunications data now. The definition can be amended in due course if the development of technology demands it.

With advances in technology it is important to clarify the scope of telecommunications data to reassure current and future users of new technologies that such communications may or may not be intercepted.

In the very least, a definition which is technology neutral but which highlights that the information being sought is information about the communication rather than the communication itself, would fit in with the Government’s policy rationale and provide some degree of certainty.

Prospective data and location information

Proposed section 176 and 180 of the Bill do not transfer existing provisions of the Telecommunications Act, but create a new scheme for access to prospective information or documents for ASIO and other law enforcement agencies.

The effect of these provisions is that ASIO and law enforcement agencies will have access to ‘real time’ mobile phone data which could allow agencies to pinpoint, with reasonable accuracy, the location of a user. In other words, mobile phones could become a de facto tracking device, and the Bill does not oblige agencies to obtain a warrant for this purpose.

The prospect that our mobile phones will soon have the ability to divulge precise location data is far from fanciful. Already some of the major networks are advertising GPS technology as a standard feature.

The Democrats consider that a person’s mobile telephone phone should not be used as surrogate tracking and tracing technology for people in the absence of any countervailing public interest, significant independent oversight and public reporting.

We favour access to location information only through a warrant and will be moving an amendment to that effect.

If this amendment is not accepted by the Government, the Bill will allow mobile telephone location information to be disclosed under a written authorisation for a period of 45 or 90 days without the need to obtain a warrant.

The Democrats also consider this time frame is excessive and should be limited.

Public Interest Monitor

Commendably, the Bill also creates new controls over the existing access framework.

However, given the Democrats view that this Bill involves a widening of the Commonwealth phone-tapping powers; it is appropriate that there be an independent umpire to balance necessary, lawful, and proportionate access by law enforcement agencies to telecommunications data with the public’s right to communicate free from surveillance.

The Democrats note that in relation to the area of listening devices, a model can be found in Queensland, where a Public Interest Monitor is authorised under the Police Powers and Responsibilities Act 2000 (Qld) to intervene in applications for listening devices warrants, and to monitor and report on the use and effectiveness of the warrants.

The Democrats have advocated the establishment of a Public Interest Monitor in other forums and see merit in adopting the Queensland public interest monitor model to improve accountability.

Conclusion

In summary, the Bill confirms privacy as a valued norm but does not do enough to protect Australians’ private conversations and communications.

While legitimate law enforcement activities may in exceptional circumstances override a right to privacy, the increasingly complex telecommunications environment exposes individuals to arbitrary interference. Agencies should not be able to self authorise such invasions without reasonable oversight from the judiciary.