Andrew Bartlett (Queensland, Australian Democrats) Share this | Hansard source

In following on from Senator Barnett, I might say that that is a nice beard, Senator Barnett—a very distinguished look. You risk being mistaken for me even more, though, if you are not careful! The Telecommunications (Interception and Access) Amendment Bill 2008 and, most importantly, the amendments that have been circulated by the government and the committee report that Senator Barnett has just referred to are further examples of the essential work of Senate committees. It is work that is mostly unsung, so I think it is important to sing about it—not literally, people will be relieved to know, but to highlight it and note its importance. In many cases it should really be unsung; it is simply getting down to the nitty-gritty of legislative detail and assessing what its actual impact will be and whether or not what is actually in the legislation before us matches the explanations given to us by the executive wing of government.

The government contends that the main purpose of this bill is to amend the Telecommunications (Interception and Access) Act 1979 to extend by 18 months the operation of the network protection provisions which are due to sunset on 13 June—just a month away. For this reason, we were asked back in March to consider the bill time critical. The government initially sought to have it included in the non-controversial legislation list at that time. It was asserted that the remainder of the bill implements a number of ‘minor yet important technical amendments’ and that it ‘contains no new powers for security or law enforcement agencies in relation to telecommunications interception, stored communications or access to data, but the bill ensures that these agencies have the necessary tools to combat crime in this age of rapid technological change’.

Before speaking to the substantive aspects of the bill, I would like to say something on behalf of the Democrats and, in particular, on behalf of the party spokesperson in this area, Senator Stott Despoja, who has some amendments that will be discussed in the committee stage. It is important to reflect on the attitude that the new government is displaying towards legislation affecting national security. While this legislation is not as huge as some of the other legislation on national security and related issues, it is still part of that same continuum. It is a concern to the Democrats that, on the first occasion that the new government has turned its mind to any form of legislation that impacts on Australia’s national security regime, we once again get this time-critical mantra being used. I accept the sunset provisions are time critical but the other provisions were not and are not. These provisions have simply been tacked on. When the government said that they were all time critical and that the bill was non-controversial—it contained no new powers and these were just minor amendments—some far too familiar and very concerning bells rang for me. It is the same approach that the previous government used to take in this area.

I reflect here on the detailed debate of an amendment bill in 2006 to the Telecommunications (Interception and Access) Act 1979. That bill—the Telecommunications (Interception and Access) Amendment Bill 2006—has same name as the bill before us. The debate on the 2006 bill was carried over three days in the Senate chamber. At that time, the ALP opposition moved a series of amendments to the bill which focused on the ALP’s concern that the legislation did not adequately protect individual privacy, particularly in relation to B-party warrants. Senator Ludwig, the then shadow minister for justice and customs, carried the debate on the legislation for the Labor Party. In his third reading contribution to the bill, he said:

The position we have now got to is that the government has voted down sensible amendments which came out of the committee process.

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It is unfortunate that this government has not picked up the amendments that Labor has proposed, safeguards which would have struck the right balance. It really comes down to a lazy Attorney-General, who has not had the opportunity to look at the recommendations, to bring forward amendments and to argue for them in here.

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The government could have picked up our recommendations during this debate. They have not. Therefore, they have not struck the right balance. Privacy is not sufficiently protected so far as B-party intercept warrants are concerned.

That was the Labor Party position expressed in this chamber in 2006 in their amendments to the bill; yet, four months into government, the Labor Party, in bringing forward this bill, have revisited the previous legislation and have suggested that it is a time-critical debate that could be put through in a non-controversial way. They initially made no attempt to address the numerous concerns that they themselves had expressed with the legislation in 2006.

As part of being balanced, I should indicate that the difference here is that the Labor government has picked up some of the concerns raised in the committee inquiry and is putting forward amendments to reflect some of those concerns. Thankfully, after the Democrats referred this bill to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry, the legislation before us emerged. It is clear from the nature and extent of submissions received by the committee and, indeed, from the committee’s conclusions in their report, that the amendments proposed by the original bill were far from minor or just technical. Indeed, the chair concluded that the amendments in relation to device based warrants proposed to remove an important, existing safeguard and refuted the assertion by the Attorney-General’s Department that the current bill merely clarifies the intention of the 2006 bill.

The government has belatedly acknowledged some of the effects of this bill by the amendments that it is now proposing—and that should be acknowledged. That also reflects the importance of the Senate committee process—not widespread headlines but just focusing on the facts, getting submissions from people that have expertise in the area and filtering through the evidence to look at the actual impacts of the legislation. That evidence included submissions from law enforcement officers, who have to deal with the daily reality of wrestling with fast-changing technology and all of the different competing issues that have been reflected on in previous contributions. The committee heard evidence from the law enforcement officers, which is important, and I acknowledge the different perspectives there. By simply doing that, the committee was able to significantly improve the legislation and also to go forward in a much more informed way.

On a more personal level, apart from the alarm bells that ring when I hear statements from ministers that legislation contains ‘minor technical amendments’—and I discover when I look at them that they are not minor—there is another statement by ministers that always concerns me, and that is: ‘We are just making changes to reflect what was the parliament’s original intention.’ This occurred when the previous amendment bill was passed a few years ago. Frankly, as a parliamentarian, I resent being told what my intention is and, in particular, being told what the Senate’s intention is by ministers who are not part of Senate. This statement is simply ludicrous. I know that you could have a whole lot of legal argument about what the phrase ‘the parliament’s intention’ means and does not mean.

However, in simple, real-world language, to try and suggest that a law that has a particular set of words was passed by the parliament and that the parliament’s actual intention was to adopt something completely different is, I think, bordering on dishonesty, frankly—and that is being polite. It is a lazy phrase to use and it is one that, to me, always suggests that there is something dodgy going on. I am not saying that there is something dodgy going on here, but it is my automatic response when I hear that justification being used that the parliament actually meant to do this a few years ago and somehow or other the parliament just got it wrong, and now we are just doing what the parliament really wanted to do back then but we could not get it right at the time. Unless there is very compelling evidence to back up those sorts of statements, I would suggest that they are more likely to be misleading rather than factual. It is disappointing to see that sort of justification put forward.

The government can argue all it wants about what the government’s intention at the time was, but I think it is very dodgy to argue what the parliament’s intention was in regard to the final legislation passed. It is particularly dubious, given that the government now arguing this was not the government from a couple of years earlier. The wording in the act, whilst there are some inconsistencies within it as it currently exists, is quite clear in not permitting what is being proposed by this legislation. Whether or not what was being proposed by this legislation is a good or a bad thing is a separate matter.

This is actually the third time in as many years that this act has been amended. On each previous occasion the Democrats, the Greens and the Labor Party, as then opposition, expressed serious concern about the operation of the act and the lack of privacy safeguards. To try and seek to rush through a series of amendments and label them time critical without revisiting those concerns is unfortunate. We do consider that the act, as a whole, still requires significant amendment in some of those areas which are not addressed by this bill. We do urge the government to consider some of those wider issues as a matter of urgency.

Notwithstanding those views, we do understand the government does find itself in the position where aspects of the legislation enacted by the former government and passed by the previous parliament are due to expire, and thus there is an imperative that parts of this bill are passed expeditiously. Sections 5F(2) and 5G(2) are subject to sunset clauses, and will cease to have effect in June this year. Items 1 and 2 in schedule 1of the bill seek to extend these sunset provisions by a further 18 months. The Democrats agree with the committee’s conclusion that extension of the sunset provisions under subsections 5F(2) and 5G(2) of the act should be allowed to pass without amendment. We also support the committee’s recommendation that any further legislation to address network protections provisions should include a thorough and considered response to achieving a balance between individual privacy rights and network protection requirements.

However, the Democrats are concerned that progress in relation to a permanent legislative solution has not progressed beyond a draft discussion paper. According to evidence provided to the committee inquiry, that has not yet been circulated outside the Attorney-General’s Department. We consider that such progress is unacceptably slow. You put in place sunset clauses to provide some idea of when the task is meant to be completed. To have made such little progress when the sunset clause is about due to expire is of concern. We do urge the government to work towards a permanent solution to this issue as fast as possible.

We also note that there are still, undoubtedly, uncertainties surrounding the application of the act to organisations other than law enforcement and intelligence agencies that do not have the benefit of an exemption. As Electronic Frontiers Australia stated during the committee inquiry:

Simply put, it seems now that ASIO, the police and anticorruption agencies may be able to legally filter viruses and spam from their incoming email but there is a good chance that organisations in the private sector and indeed governmental organisations not specifically provided for in the legislation may be committing an offence by doing that.

The Democrats note recent comments from the Attorney-General that indicate the department is developing a solution to this problem, and we consider that any uncertainties surrounding the application of the act to non-exempt organisations should be addressed as a matter of urgency. If clarifying legislation is required, it should be developed commensurate with the permanent legislative solution in respect of law enforcement and intelligence agencies.

The device based named person interception warrants were introduced by the 2006 bill, which I have referred to already. During the committee inquiry into that amending bill the Democrats considered that there was significant uncertainty surrounding the ability to uniquely identify communications devices and recommended that the provisions of that 2006 bill relating to device based warrants be delayed until it was possible to determine the full scope of their operation. We note the concern expressed still by privacy and civil liberties groups, as reflected in the committee’s report on this occasion, regarding the continued uncertainty in relation to unique identifiers. We support the committee’s recommendation to implement recommendation 3.2.5 of the Blunn report and support priority being given to developing a unique and indelible identifier of the source of telecommunications.

However, we consider that the implementation of that recommendation from the Blunn report should be a condition precedent to access to telecommunications via device based warrants. The Blunn report did not recommend the introduction of device based warrants, but rather that priority be given to developing a unique and indelible identifier of the source of telecommunications and emphasising that as a basis for access. Accordingly, the Democrats still have strong reservations about allowing any expansion of the device based warrant regime. We consider that to allow the development and expansion of the device based warrant regime before the development of a unique and indelible identifier is to risk putting the cart before the horse.

While the government’s amendments are a significant improvement on the original form of the bill, they are also a stopgap measure and not one that the Senate should condone as a matter of course or as a permanent solution. On the one hand, the amendments will require that only devices that are identified in the warrant can be subject to interception; on the other hand, provisions remain in the act, such as section 16(1)(a) and 60(4)(a), which contemplate situations where a device has not been identified but is nonetheless subject to surveillance.

By its own admission, the government is leaving the door open to revisit this legislation at a later date to achieve its original aims—which may or may not have been the parliament’s original aims—in relation to device based warrants. It is a messy way of legislating, caused by the government’s effort in tacking these amendments on to the time critical sunset provision amendments. That is the only reason why we are dealing with those issues at the same time.

Notwithstanding these significant reservations, the Democrats will not oppose the government’s amendments that had been circulated to the amending legislation, on the basis that they improve the privacy protections in the original bill considerably. The Democrats also welcome the committee’s consideration of this bill in light of Australia’s international obligations. We support the committee’s recommendation that the government commission an independent review of the operation of the act within three years and that the act be amended to provide a statutory requirement for independent review every five years. However, we see no reason why the latter amendment should be delayed and we have circulated an amendment to achieve this aim immediately. We also support the committee’s conclusion that a summary statement in the explanatory memorandum of consistency with international obligations, in lieu of an express right to privacy under Australian law, would be a useful guide when considering any further legislative amendments.

In reality, like previous amendments to this act, this bill amounts to an incremental expansion of the telecommunications monitoring powers of the Commonwealth. As a result, there is a significant risk that the powers of law enforcement and security agencies under the act could breach the privacy rights of Australian citizens. As such it is appropriate, in the Democrats’ view, 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. They are competing principles and they are difficult to reconcile—I accept that. But I think that having an independent umpire to consider some of those balances is an important part of the mix.

The Democrats note that, in relation to the area of listening devices, a model can be found in my own state of Queensland, where a public interest monitor is authorised under the Police Powers and Responsibilities Act 2000 to intervene in applications for listening device warrants and to monitor and report on the use and effectiveness of the warrants. We see merit in adopting the Queensland public interest monitor model to improve accountability. I am sure that Senator Ludwig would not want in any way to reflect poorly on his own state government’s legislation in that area.

Finally, in circumstances where there are competing views from government and key stakeholders, it is the role of the Senate to analyse the legislation carefully and recommend any appropriate changes. I urge the government to ensure that we do not slip back into what we have seen too often, particularly in the last three years or so, with legislation being rushed through unnecessarily or components of amendments that are time critical being tacked onto others that are not as a mechanism to try to curtail adequate examination of amendments to law.

However, again, it should be emphasised, particularly due to the efforts of the Democrats in getting this bill referred to a committee rather than being put through as non-controversial, that a number of deficiencies in this bill have been identified through the committee process and the government has moved from its original position. It should always be acknowledged when that happens, particularly when the government members of the committee are part of that process. It is encouraging that the committee and its new chair have operated effectively in scrutinising the legislation and recommending amendments to government—which, again, has not always happened as clearly as I would have liked in the past. I do think the committee’s report also contains some valuable components for the government for further consideration.