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

I seek leave to incorporate my speech in Hansard.

Leave granted.

The speech read as follows—

The secret surveillance of citizens by state authorities is a common theme in drama and fiction. From Shakespeare to today’s Hollywood films—such as the Jason Bourne trilogy—the fear of an all powerful state spying and trampling on people’s rights has popular resonance.

And it has popular resonance for a reason. The overbearing power of the state to interfere and punish is a real problem of contemporary life across the globe.

Arbitrary and administrative imprisonment, the removal of the right to silence, suppression of freedom of expression and encroachments on the right to privacy are growing across the Western world.

The horrible irony is that it was precisely these problems that modern liberalism sought to address by seeking a balance between the rights of individuals and the powers of the state.

But it is this balance, often under the guise of the war on terrorism that has been jettisoned by neo- conservatives such as the Liberal Party and the Howard government. This bill, the Telecommunications (Interception and Access) Amendment Bill 2007 is the latest manifestation of this process and it is a major threat to privacy and civil rights.

This “track and tap” bill will enable police and security agencies such as ASIO to conduct real time tracking of people’s mobile phones and Internet browsing without obtaining a warrant.

Telephone and Internet companies will be required to funnel data on phone calls, email, voice-over-the-internet (VOIP) and web browsing in real time to the police or ASIO. The data includes phone numbers, caller locations, web addresses and other telecommunications information.

Before examining in detail the Greens particular concerns about this bill I will briefly review the sections of the bill that set up these new powers for the police and ASIO.

Unlike much of the Bill, the proposed Sections 176 and 180 are not merely the shifting of provisions of the Telecommunications Act. Rather they allow ASIO, police and other criminal law enforcement agencies access to telecommunications information they have never had before.

Section 176 allows an eligible person within ASIO to authorise the disclosure of prospective telecommunications data to ASIO, on a “near real-time” basis for a period of 90 days.

Section 180 allows an authorised officer within a criminal law-enforcement agency which includes state and federal police to authorise the disclosure of prospective telecommunications data to that agency, on a near real-time basis for a period of 45 days.

In order to issue such an authorisation, the authorised officer must be satisfied that the disclosure is reasonably necessary for the investigation of an offence that is punishable by imprisonment for at least 3 years.

I understand from communication between my office and the government that near-real time means immediate communication from the telecommunications company or Internet service provider and the agency.

How instantaneous such communication would be is dependent on technological capacity but it would be no more than a few minutes.

This then opens up the prospect of such communications being able to be observed in effectively real time.

This will mean every mobile phone could become a tracking device for the police or ASIO.

Every website address a person visits will also be able to be monitored.

And there is no judicial oversight and no accountability.

To much of the Australian public particular those who know that Big Brother was a novel by George Orwell not a just a television show, such a prospect is no doubt of extreme concern.

It is certainly of concern to The Greens.

It is important to remember when considering this issue that the Telecommunications Interception Act 1979 was passed at time when digital communications did not exist.

It was then accepted that the tapping of someone’s phone was such a significant encroachment on a person’s privacy that a warrant was required and judicial oversight was needed.

Overtime and with the development of digital communications more and more information is now available beyond merely the content of the phone conversations.

Security agencies and the government have used this fact to argue that such data whilst disclosing information on person is not of the same significance as the content of a call and that therefore the principle of judicial oversight first elaborated in the analogue age could be discarded.

While such an argument has gained some currency it does not stand up to scrutiny.

Whether or not the secret surveillance of the content of a phone call is a greater breach of person’s privacy than knowledge of who they are calling and where they have visited all depends on context.

The fact is, allowing police or ASIO to track the movement of a person or what websites they have visited for one or three months is as much an intrusion on their privacy as listening to a person’s phone calls.

Tracking Internet browsing is particular intrusive. The Electronic Frontiers Foundation said in their submission to the Senate Inquiry on this bill that: 

Surveillance of web browsing activities is akin to filming individuals’ activities in a manner that records every item they purchase in shops, every film they see at the cinema or hire or buy, every book and magazine they glance through and/or purchase or take out on loan from a library and so on. Furthermore, unlike “telecommunications data” about telephone calls and email messages, the address of a web page often, of itself, provides information about the content or substance of the communication and web page addresses can be used to obtain access to the content that was communicated.

Tracking of mobile phones could become more intrusive overtime as the Electronic Frontiers Foundation has also pointed out. They say: 

New technologies such as Assisted GPS, reportedly expected to be introduced in Australia by some carriers in 2007 or 2008, will greatly improve the accuracy of mobile phone location information. Access to ‘prospective” location information enables not only identifying/tracking location but potentially real world, real time, surveillance of a tracked individual’s activities.

Therefore the Greens believe the police and ASIO should have to get a warrant to track and tap people’s mobile phones or web browsing.

The Law Council of Australia shares our concerns they said in their submission to the Senate Legal and Constitutional Legislation Committee that: 

Given the invasion of privacy it represents, the Law Council believes that criminal law- enforcement agencies should require a warrant in order to access prospective telecommunications data and thus use a person’s mobile phone as a tracking device.

The Law Council recognises that under Section 39 of the Surveillance Devices Act 2004, law enforcement officers are already able to use a tracking device without a warrant in the investigation of a federal offence which carries a maximum penalty of at least 3 years.

This is provided that written permission is received from an “appropriate authorising officer” and installation and retrieval of the device does not require entry onto premises without permission or interference with the interior of a vehicle without permission.

Nonetheless, the Law Council believes that the ease with which telecommunications data may be used to track a person, as compared to the difficult of secretly affixing a physical tracking device to a person or thing, renders proposed s 180 far more amenable to misuse or overuse by law enforcement agencies than existing provisions in the Surveillance Devices Act 2004.

It is on that basis that the Law Council believes that access to prospective telecommunications data should require a warrant.

There are other aspects of this bill that deserve some attention. It should be noted that increasingly telecommunication companies and Internet service providers are concerned about the burdens and obligations placed on them by national security laws and agencies.

I know that the Internet Industry Association and the Australian Mobile Telecommunications Association have expressed concerns about aspects of the bill that have not been addressed.

Also worth noting is that although the government claims to be implementing the Blunn review into telecommunications interception this bill goes far beyond the recommendations of the Blunn review and in particular the proposal to turn all mobile phones into tracking devices and monitor web browsing was not recommended.

There are aspects of the bill that deserve support such warrants for phone tapping during investigations of child pornography, but The Greens cannot support the bill in its present form.

The reality is this bill is more like something from East Germany than a government claiming to support liberal principles.

It is a major attack on Australian’s privacy on the eve of an election in the dying days of this Parliament.

It is further a travesty that the Labor opposition is so unwilling to stand up for Australian’s privacy because it has adopted a “me-too” approach when it comes to national security.

I expect the late great Lionel Murphy would be ashamed.

The Greens will oppose this bill.