George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

The primary purpose of the Telecommunications (Interception and Access) Amendment Bill 2008 is to extend the operation of network protection provisions which are due to expire on 13 June 2008. It will also propose some technical amendments to the Telecommunications (Interception and Access) Act. The principal act prohibits the interception of telecommunications but also provides for interception by law enforcement and security agencies under warrant if the Attorney-General is satisfied that the telecoms system is being used by a person reasonably suspected of engaging in activities prejudicial to security.

Recent advances in technology have made it possible to communicate without a message passing over the telecommunications system—for example, storing emails or text messages in draft without sending them, swapping SIM cards and so on. These are known as stored communications. In 2004 the coalition government introduced interim legislation to permit security and law enforcement agencies access to stored communications using a normal search warrant as opposed to a telecommunications interception warrant.

In March 2005 the then government commissioned a report by Anthony Blunn to review the regulation of access to telecommunications. His report, which was tabled on 14 September 2005, recommended legislation dealing with access to telecommunications data. In 2006 the coalition government introduced legislation responding to the first tranche of the Blunn report recommendations, the 2006 act. This provided for a warrant regime for access to stored communications. In 2007 the second phase was enacted, implementing a two-tier access regime for access to historic and real-time data.

The provisions of the current legislation which are acceptable to the opposition are the proposed amendments to sections 5F(3) and 5G(3), which have an existing sunset provision of 13 June 2008. The bill proposes that this be extended until 12 December 2009. These are provisions which provide for exemptions to the general prohibition on the interception of telecommunications for Commonwealth and state law enforcement and security agencies. They contain the so-called network protection provisions. These provisions are necessary because automated systems to screen communications for viruses may constitute a technical breach of the prohibition on interception under the T(IA) Act. There is a risk that network administrators may incidentally intercept communications in the performance of that important function.

The Blunn report recognised that an exemption would permit the incidental interception of communications in the course of developing new technologies but recommended that access by law enforcement and security agencies without warrant should be permitted where it is necessarily incidental to the protection of data systems or the authorised development of new technologies or interception capabilities. The need is recognised for more comprehensive legislation to deal with this issue. Under the extended sunset provision, 20 Commonwealth and state agencies will have access exemptions, in the limited circumstances to which I have referred, until the end of 2009.

There are a number of technical amendments. Item 3 proposes to amend the T(IA) Act to allow a device based warrant—that is, for a particular telecommunications device used or likely to be used by a person to intercept communications from multiple devices. The 2006 amending act used the example of a person using multiple SIM cards in a mobile phone in quick succession to attempt to thwart interception, and other methods can be imagined. I note that these warrants are to be used only as a second-tier measure—that is, only if it would not be practicable to intercept the telecommunications services used or likely to be used by the person in respect of whom the warrant is issued. There are also consequential amendments.

The 2006 and 2007 amending acts resulted in some duplication in notification and reporting requirements. These are not controversial. I note that there were amendments proposed by the Senate committee that reviewed this legislation which have been accepted by the government, and the opposition welcomes the government’s concessions in that regard. These provide for, firstly, the requirement to identify multiple devices in device based named person warrants rather than for the warrants to extend presumptively to any device used or likely to be used by a person and, secondly, the removal of the power retrospectively to extend a warrant to devices not identified in the warrant. The opposition commends the work of the committee in this regard. The recommendations were unanimous. I make particular mention of the work of my friend and colleague Senator Guy Barnett in the committee.

In conclusion, the extension of the sunset clauses and the technical amendments does not create new powers for security and law enforcement agencies, but the network protection provisions do allow exemptions in limited circumstances’. The opposition recognises the complexity of the technical and privacy issues that arise in this area and urges the government to come forward with a legislative solution well before the 2009 sunset date. Having said that, and with the concessions the government has made to the recommendations of the Senate committee, the opposition will be supporting the bill.