Guy Barnett (Tasmania, Liberal Party) Share this | Hansard source

Like the shadow minister, Senator George Brandis, I stand to speak in support of the Telecommunications (Interception and Access) Amendment Bill 2008 and also to commend to the Senate the Senate Standing Committee on Legal and Constitutional Affairs report on this legislation, which notes seven recommendations at the back. I note that the government has taken those recommendations on board. I thank the government for acknowledging the work of the committee and for taking those recommendations on board. It is really appreciated and it highlights the importance of the work of the Senate and the Senate committees. It was a unanimous report and it was released in May, just a short time ago. Senator Patricia Crossin chaired the committee and I was the deputy chair. The committee included Senator Andrew Bartlett, Senator Mary Jo Fisher, Senator Annette Hurley, Senator Linda Kirk, Senator Gavin Marshall and Senator Russell Trood. Senator Bob Brown was a participating member, as was Senator John Hogg.

I want to commend to the Senate the submissions made to that committee by 14 submitters: the Law Council of Australia; the New South Wales Council for Civil Liberties; the Office of New South Wales Privacy Commissioner; the Attorney-General’s Department; the Victorian Privacy Commissioner; ASIO, which made a confidential submission; the Office of the Privacy Commissioner; the Castan Centre for Human Rights Law; Victorian Police; the Australian Privacy Foundation, which also made a supplementary submission; Electronic Frontiers Australia; the Australian Federal Police; Tasmania Police; and the Queensland Police Service. All of those submissions were very much appreciated by the committee. The committee took on board those submissions, as well as the submissions of the witnesses who appeared before our committee, to come up with the seven recommendations. We had to balance the importance of protecting privacy and privacy rights with the importance of ensuring appropriate law enforcement measures and the operation by those various law enforcement agencies so that they can do their job. That is the role of Senate committees and the Senate—to improve the legislation wherever possible. It is a very good example of where it is working and working well.

The bill sought to amend the Telecommunications (Interception and Access) Act 1979, and its primary objective was to protect the privacy of individuals who use the Australian telecommunications system. The act makes it an offence to intercept communications or to access stored communications other than in accordance with the provisions of the act. There were three main amendments set out in the bill. The first was the extension of the sunset date for the network protection provisions. I think there was unanimous support for that being done. The second was the ‘clarification’—that is the word used by the government department—that a device based named person warrant gives the authority to intercept multiple telecommunications devices, and that additional devices not identified when the warrant was issued may be added. Now, of course, that objective has changed and the government has seen fit not to proceed with that particular objective but rather to wait until they can, with due consideration, come up with a better form of words, a better form of amendments, so that we can get consent and agreement through the Senate for such legislation. The third and final amendment was the removal of mandatory requirements for state interception agencies to provide copies of warrants and revocation instruments to state ministers, and for the ministers to forward these to the Attorney-General’s Department. Basically, that means to make it voluntary for relevant state ministers, for emergency services or for police to use their own discretion in that regard.

I want to note that the committee reviewed and used the previous efforts and past reports of the Senate Legal and Constitutional Affairs Legislation Committee when it was chaired by Senator Marise Payne, who I again commend in the Senate for her leadership of that committee over many years and for the reports that were prepared by that committee. The committee, in this instance, has produced a report that is consistent with past Senate Legal and Constitutional Affairs Legislation Committee reports and recommendations. We have also tried to be consistent with the Blunn report. Senators will recall that in 2005 the Howard government appointed Anthony Blunn AO to undertake a review of the regulation of access to communications under the T(IA) Act. Mr Blunn found that from a privacy point of view, uncontrolled access is simply not satisfactory. In his report of 2005, on page 59, he said:

An access regime should be established which provides appropriate protections and prevents backdoor use and access to obtain content.

That is referred to in our Senate committee report. In terms of the background and in terms of a telecommunications device and technology generally, things are changing and changing fast. A terminal device that is capable of being used for transmitting or receiving a communication over a communications system is a telecommunications device and it includes things such as a computer and a computer terminal, a personal digital assistant and a mobile telephone handset. They can be used to access more than one telecommunications service. For example, it is a simple matter to change a SIM card in a mobile phone or, in fact, for the user to use more than one mobile phone. Examples were put to our committee where over a dozen mobile phones and over a dozen SIM cards had been used. Law enforcement agencies want to do their job and do it well, and they want to be able to ensure that they cover the field.

That was where the legislation was heading, and we had to weigh that up to ensure that we got a proper balance between allowing law enforcement agencies to do their job, and do it effectively, and the privacy measures, because third parties could certainly be impacted by these new measures through no fault of their own—for example, because they used a certain computer terminal or a certain mobile phone that was used by the suspect concerned. So their interests need to be properly protected. The government’s explanatory memorandum sets out that:

… interception agencies are required to provide copies of warrants and revocations to the Secretary of the Commonwealth Attorney-General’s Department, who in turn provides them to the Commonwealth Minister ...

In chapter 3 of the report we talk about the sunset dates and we make a recommendation there that is consistent with the Blunn report. In recommendation 1, we say that we need to get ‘a balance between individual privacy rights and network protection requirements’.

In chapter 4 we talk about the device based named person warrants. Most of the witnesses who appeared before the committee raised concerns in relation to the proposal in the bill to permit devices to be added to a warrant after it had been issued and without further reference to the issuing authority. This is an area where we made a number of recommendations, and I am pleased to say that the government has acceded to those recommendations and has removed the concerns about adding devices to those warrants retrospectively—that is, after a warrant has been issued. I think that is a good move. It certainly ensures that the privacy of the individual will be protected.

In the report we made the point that ‘allowing interception agencies to add additional devices to a device-based named person warrant without further referral to an issuing authority’ was a major change to the bill. It was not, as the government had initially said in its second reading speech and in its explanatory memorandum, simply a matter of clarification. It was a significant change, and the government has seen fit not to proceed down that track, which is certainly appreciated. One of the conclusions we reached in the report was:

The committee is not convinced, however that an issuing authority can adequately consider potential interference with the privacy of any person(s), and also consider the other factors against which this should be balanced, if it is unaware of the identity of the devices that an interception agency may add subsequently to a device-based named person warrant.

We made that clear and we put that in a recommendation, and it has been noted. I also want to refer to the conclusion regarding accountability, where we said:

In regards to the accountability mechanisms internal to interception agencies, the committee commends the work done by interception agencies to improve their processes and accountability mechanisms.

From the submissions from Tasmania Police, the Queensland Police Service and others, it seemed quite clear that the law enforcement agencies are trying to get it right and are trying to keep up with changing technology and changing reforms. The committee also noted the importance of maintaining ‘independent scrutiny should agencies be authorised to add devices to a warrant, except in exceptional circumstances’. That was certainly taken into account in our report and in the government’s response.

I particularly appreciate the submissions from the Law Council of Australia, the New South Wales Council for Civil Liberties and Electronic Frontiers Australia. They made a lot of important submissions on the issue of privacy and reporting arrangements. You will see in the report that, with regard to reporting arrangements, the committee recommended that the bill be amended to insert a requirement that the annual report in relation to the bill incorporate additional information. That was recommended on the basis of the privacy of the individual—those third parties that may be affected—to require there to be an open, transparent and accountable arrangement where that reporting is put in place and becomes public information. I have referred to the removal of the mandatory arrangement for state ministers to report accordingly, and that is outlined in chapter 5 of the committee’s report. In chapter 6 we touched on some other issues and recommended that there should be an independent review of the act within three years. We also made further recommendations regarding reviews of the legislation.

I want to take this opportunity to thank the secretariat of the committee, Peter Hallahan and his team, for the work that they have done. I appreciate the long hours that are put in in pulling together a report like this in a very short time frame. The government had a sunset clause in the previous legislation and they and the Senate committee had to act swiftly. We delivered the report a week or two ago, and this legislation is now a priority for the government. The coalition supports the move to have this legislation reviewed and passed. I, together with Senator Brandis and the other members of my committee, support the legislation.