Senate debates

Tuesday, 28 March 2006

Telecommunications (Interception) Amendment Bill 2006

In Committee

Bill—by leave—taken as a whole.

Photo of John HoggJohn Hogg (Queensland, Deputy-President) Share this | | Hansard source

The question is that the bill stand as printed.

9:56 pm

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

I table a supplementary explanatory memorandum relating to the government amendments to be moved to this bill. The memorandum was circulated in the chamber on 28 March 2006.

Photo of Joe LudwigJoe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | | Hansard source

I would like to raise some general matters going to a number of recommendations made by the Senate Legal and Constitutional Legislation Committee which went to issues that perhaps could not easily be put in a format consistent necessarily with an amendment. I refer particularly to recommendation 6, which states:

The Committee recommends that, consistent with the existing arrangements for telecommunications interception, immediate action be taken to ensure the enforceability of the stored communications provisions on State and Territory agencies by requiring complementary legislation to be enacted as a precondition to being granted the powers of an enforcement agency under the stored communications regime.

This is a matter that has been utilised by the Attorney-General’s Department in the past where they have put preconditions before they allow a state authority to be granted that power. In fact, one notable example of recent times comes to mind where there was a requirement for matters to be dealt with before the Attorney-General would indicate that they could utilise that interception power. In looking at that provision, the committee considered it essential that the Commonwealth has the ability to enforce the obligations prescribed in the bill relating to accessing stored communications:

... immediate action be taken to ensure the enforceability of the stored communications provisions on State and Territory agencies ...

The report states at paragraph 3.65:

The Committee considers that consistent with the arrangement for the existing telecommunications interception regime, State and Territory Parliaments should be required to enact complementary legislation for access to stored communications as a precondition to being granted the powers of an enforcement agency under the stored communications regime.

It is recognised that there is a particularly short time frame to enact this legislation and ensure that it can start. I note that there is obviously a requirement that the matters be brought to a conclusion this week—that seems to be the government view. But these matters could be dealt with by an undertaking here by the government that they will abide by the existing arrangements in place and that they intend to ensure that those matters are dealt with as they have been dealt with in the past.

States have accessed telecommunications interception that way. In terms of stored communications, although it is a different warrant regime it is still a warrant regime that is designed to ensure that there is an appropriate and proper regime in place to process stored communications. It would also allow state governments to utilise the regime while being bound to ensure that they meet all the privacy concerns that have been raised during the committee and by the submitters to it. I think those sorts of issues could be dealt with by the government providing an undertaking to that effect.

Also, more generally—I will move on, but I will come back to that particular issue—and it is really only a case of reiterating what I had an opportunity to say in part during the second reading stage of the debate: this process has effectively been shortened by the government’s desire to bring this legislation forward in this manner. I can complain a number of times about that, and I suspect I will come back to a couple of complaints, but it is perhaps best to get that out of the way early and get it off my chest. There could have been a better process in place. The government chose not to ensure that there was a better process.

I have no complaint about the way the Blunn review was sought, obtained and finalised. The government followed committee recommendations on what was effectively a very difficult issue. I guess I am coming to how you work out what you do with stored communications; how you ensure that there is a balance, with privacy concerns being taken into consideration and safeguarded; and how you then deal with ensuring that our law enforcement agencies have appropriate powers to fight crime. Up to that point, one could only say that the government had acted reasonably, but we find that in the second part, which is the part where the legislation to effect the Blunn review recommendations has come forward, it is disappointing to see that the government is now rushing the parliament. It could have been done in a more metered and better way. It could have been phased in. It could have been brought forward in parts that were able to be dealt with—particularly the stored communications regime. It is a positive regime and is recognised as a positive regime to protect people’s privacy. That could have been the first tranche of this review of the Telecommunications (Interception) Act 1979.

Blunn recognised that this will not be the first or last time that this legislation will be reviewed. It seems that the government has cobbled together some issues that could have and would have been better dealt with at a later stage. Having said that, the submitters to the committee also recognised that they were being short-changed in terms of time and their ability to engage in the committee process. That is my second complaint: legislation should be subject to quality review by the committee. Submitters should have sufficient time to examine legislation and have reasonable time to ensure that their responses are both qualitative and quantitative in the sense of being able to ensure that they deal with all the issues, deal with them in a qualitative way and highlight the issues that they want to, rather than being put through the test of being rushed through, sometimes without being able to consider their submissions and look at other submissions. That would ensure that the process is the best one possible. Also, the committee must be able to ensure, when it hears from submitters, that it has sufficient time to listen to submitters, query submitters and give them a reasonable opportunity to come back on issues that may need to be clarified. The submitters in this instance were given a very short timetable to turn around any responses or queries the committee might have had.

The argument from the government might be that that was driven by the necessity of meeting the deadline. The government set that deadline. It could have changed the deadline if it so desired; it could have extended it further; it could have done a range of things to mitigate it. It did not. We then have to deal with the reality that the government is setting the deadline and driving to it. It is easier if I get those complaints out of the way first, rather than make them every time I stand up to deal with an amendment. I know they are legitimate complaints and I think that in this instance the government has failed to allow the committee to adequately scrutinise this bill in a holistic way. Coming back to the undertaking I suggested: if the government wants to provide that, it would be helpful.

10:06 pm

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

As I said earlier, the government will continue to consider the recommendations made by the Senate Legal and Constitutional Legislation Committee, and that consideration will take place over the coming months. In the event that further amendments are necessary, the government anticipates addressing those issues in the spring sittings this year. I cannot give an undertaking on the run tonight as to whether any particular recommendation will be adopted or not, but I can say that the government will consider recommendations made by the Senate committee in its report. The Attorney-General has made that clear and I reiterate that tonight. I think that is relevant to the point that Senator Ludwig has made.

10:07 pm

Photo of Joe LudwigJoe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | | Hansard source

I heard the response in respect of that matter. There are a couple of other matters that I want to deal with before we start on the amendments themselves. One question relates to recommendation 20. The issue there is the government’s view in respect of recommendation 20, in that the committee recommended:

... that the proposed section 46(3) (which contains the requirement that the issuing authority must not issue a B-party warrant unless he or she is satisfied that the agency has exhausted all other practicable methods of identifying the telecommunications services used) be amended to exclude the word ‘practicable’...

However, it comes to mind that there may be some practical, as distinct from practicable, problems with that approach. The essence of recommendation 20 was to ensure that B-party warrants are used as a last resort. I think that was proposed in the government’s explanatory memorandum. As I understand it, with recommendation 20 the committee wanted to ensure that the amendment not only reflected the explanatory memorandum but also ensured that the legislation provided for B-party warrants to be used as a last resort and recorded that.

Labor have not at this stage moved an amendment to delete that. We first wanted to hear the government’s view regarding recommendation 20. We obviously have a little time and, if we see the need to persist with that amendment, we will. But before we consider that we want to see whether the government, in any of its amendments or, subsequently, during any further review, is going to strengthen the last resort provision and whether it sees any difficulty with deleting the word ‘practicable’.

10:10 pm

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

The government is not dealing with that aspect at this point in time. That would be one of the matters which would fall into the category that I mentioned earlier—it would be considered over the coming months. At this stage, the government is inclined to oppose any amendment which would reflect that, but that does not mean to say that the government would not continue to give consideration to these recommendations. As I said earlier, these matters have not been included in the government amendments tonight because the government is not prepared to give an undertaking one way or another on those particular issues tonight. That is why the Attorney-General has left the gate open, so to speak, on the consideration of recommendations generally made by the committee.

We have picked up some of the recommendations made by the committee, and they are reflected in the amendments which the government are moving tonight. But, as for the remainder, at this stage we are not prepared to make them the subject of amendments—notwithstanding the fact that we would still continue to consider those recommendations. As in recommendation 16, I appreciate the point Senator Ludwig made, but the government’s view is that at this stage we cannot give an undertaking as to support or otherwise. If we were pushed to the issue so that we had to vote on it tonight because of an amendment which reflected those recommendations then the government would oppose that.

10:11 pm

Photo of Bob BrownBob Brown (Tasmania, Australian Greens) Share this | | Hansard source

That is farcical. The government has dumped this legislation, which is a total overreach and an invasion of the rights of Australians, on the Senate and on the people of Australia. There was a very short Senate inquiry, peak national legal and other bodies submitted to that inquiry, and the government says, ‘We’ve got some amendments which pick up a couple of recommendations from that inquiry, but we say to the Labor opposition, “Trust us; we’ll look at others further down the line.”’ What sort of process is that? This is the makings of a gross invasion of the privacy rights of innocent people in Australia. It is not antiterrorist law. I cannot ask the minister, ‘Is this antiterrorist law?’ It would be a waste of time because the minister does not really know. He is here doing the Attorney-General’s bidding.

What we do know is that this is a massive increase in the ability of surveillance agencies, ultimately controlled by the government of the day—this Attorney-General and this Prime Minister—to look into private affairs. We all know that the communications being looked at here can be of the most intimate affairs between individuals who are entirely innocent and not even suspected of anything. It is such loose and degrading legislation that the spy agencies involved—and we go beyond spy agencies, because a number of agencies are now involved—will be able to pry into people’s private business without suspecting them of anything. They will be able to keep records of that and potentially pick people up for some other breach of the law which has nothing to do with what the agency set out to track because of what until now would have been illegal snooping on the privacy of Australians.

Let me give comment here from an article written by Mr George Williams and Mr David Hume. We know what remarkably incisive minds they bring to this legislation. On Friday in the Hobart Mercury they wrote:

Federal Parliament is to … debate next week a law that conjures up modern-day images of Big Brother.

That is this law we are dealing with here now, which the government is saying to the opposition: ‘Trust us. Wait a while. We might ameliorate it a bit with some later amendments.’ That is nonsense. Mr Williams and Mr Hume said:

The Bill will allow the Government to read our private emails, SMSs and other stored communications, without our knowledge.

The power will extend even to innocent people, called B-parties, if they have been unlucky enough to communicate with someone who is suspected of a crime, or of being a threat to national security.

The Government should sometimes be able to monitor the communications of innocent people.

This may be necessary to protect the wider community, where a suspect can only be tracked down through another person.

However, the Bill goes far beyond what can be justified and undermines our right to privacy more than is needed to properly enforce the law.

Our key concerns are that, first, the Government will be able to collect not only the communications between the B-party and the suspect—

that is, the innocent person and the suspect—

but also communications between the B-party and anyone else.

If you are unfortunate enough to communicate with someone suspected of an offence and, therefore, you become a B party, the government may be able to monitor conversations you have ‘with family members, friends, work colleagues, your lawyer, your doctor and so on, no matter what you spoke about’. The article continues:

Your most private and intimate conversations could be pored over, without your knowledge, by people you have never met.

This is Australia 2006 in the Howard era. Messrs Williams and Hume go on to say:

Second, in some circumstances, the Government can use the information it collects even though that information is irrelevant to the original suspect.

For example, if the Government uncovers incriminating information from listening to a B-party’s—

that is, an innocent person’s—

conversations, this can set off a chain reaction, allowing the interception of the incriminated person’s communications or of anyone with whom they communicate.

The Government could use this information to initiate a prosecution, even if it relates only to a minor offence.

Third, the Bill sets a very low threshold for ASIO to be granted a warrant.

As long as ASIO has tried other means of tracking a suspect, it only needs to show that intercepting the B-party’s—

that is, the innocent person’s—

communications is likely to assist in obtaining intelligence related to security.

This is a very wide power, particularly since, once ASIO meets the threshold, it can intercept any communications to or from the B-Party—

that is, the innocent party.

Fourth, the threshold that ASIO must satisfy uses general terms such as likely to assist and relating to security.

This vagueness creates the potential for Government agencies to misuse the power or apply it in an arbitrary fashion.

This arbitrariness extends to another aspect of the Bill. It differentiates between stored communications—

like email and SMS—

and real-time communications—

like telephone conversations.

Under the Bill, it is much easier to access stored communications, apparently because SMS and email are thought to be less private than telephone conversations.

However, now that telephone conversations often occur in public on mobile phones, many people, and particularly young people, reserve their most personal interactions for email and SMS.

These problems have been compounded by the speed with which the Government has sought to push the Bill through Parliament.

Interested parties were given only 10 days to prepare submissions on the 90-page Bill. The Senate Committee responsible for reviewing it has only two weeks to the review the submissions, hear evidence and prepare a report.

That is all over and done, since last Friday, and here is the minister saying, ‘Oh well, we’ll look at those after the bill has passed, if you don’t mind.’ Mr Williams and Mr Hume went on to say:

The dangers of a bad process are especially high because, as just one part of a recent torrent of anti-terrorism legislation, it is easy for bad legislation such as this to slip by unnoticed and unamended.

Protecting our national security and investigating serious crime are important goals.

However, we must be careful that in developing a legal response we do not lose sight of the rights and freedoms we are trying to protect.

We should ensure that, where the Government is to gain intrusive new powers over our privacy, these powers are balanced and go no further than is needed.

They conclude with this:

This Bill for surveillance powers over our emails and SMSs goes too far.

It contains more power than is needed over too broad a range of innocent communications and contains too few safeguards.

The Government should go back to the drawing board to come up with a better proposal.

What a great piece of legislation for the opposition to be supporting!

10:20 pm

Photo of Joe LudwigJoe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | | Hansard source

There are a couple of other matters that I also particularly want to get the government’s view on. I am going to start with another complaint—maybe I will get them out of the way earlier rather than later, during the substantive amendments. The government’s attitude is really quite surprising in respect of this process which we are now going to embark upon. Labor have sought to circulate in the chamber, albeit a little late, as best we could, amendments which give effect to many of the important recommendations contained in the committee report to ensure that the bill strikes the right balance between privacy and the requirements of law enforcement agencies—which is a difficult balancing act, may I say. But it is one that still has to be achieved. There is a legitimate role for law enforcement agencies to fight crime with the types of provisions contained in this bill.

There is also, of course, a responsibility on us to ensure that the right balance is struck, because it is important to ensure people’s individual privacy is respected and preserved. It is also important to ensure that the bill does not have any unintended consequences and that its provisions are clear and do not offend any laws unintentionally and people can operate under them in a way they can understand. But what we hear tonight is that the government will move through with the bill, then come back and continue to look at the recommendations to see how they might still be required. So some way down the track we may—or may not—find out whether it has subsequently been decided to pick up any of the recommendations. We may not even know when the government has decided not to pursue them. The legislation—as I think Blunn himself said—will still need review and, as the government has indicated, this is only part of the legislation.

What the government could do to alleviate a lot of the concerns—that even Senator Brown has—is move forward with the part of the legislation that is in fact a positive development from the status quo in relation to stored communications under section 3L of the Crimes Act, which allows agencies to access stored communications using what I refer to as ordinary search warrants. This is needed because it will improve privacy and ensure that there is an appropriate access regime. The amendments that the government have, to fix up some of the unintended consequences and some of the suggestions made by the committee, would produce an outcome that would be far superior to the present position.

We could leave schedule 2 for another time. We could continue with schedules 4, 5 and 6, which effectively are the matters that can be picked up. We know that schedule 3 relates to providing unique identifiers of handsets. That is a positive addition and does protect people’s privacy. The amendment of class 1 and class 2 in schedule 4 is a positive development. It indicates that the issuing authority has to take privacy into consideration, and therefore it is a substantial improvement to the law as it currently stands. Schedules 5 and 6 are helpful. They are procedural more than anything else and we can see the necessity for them.

That would be a way forward other than the way that the minister intends to proceed with tonight, but I do not think I am going to be able to convince the government to adopt it, although it would be a much better course. So I am going to have to deal with the matters as they arise. If the government could indicate whether or not it is keen to undertake that process, that would be helpful, but I will not hold my breath.

10:26 pm

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

I move government amendment (1) on sheet PA337:

(1)    Clause 2, page 2 (table item 2), omit the table item, substitute:

2. Schedules 1

to 3

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

This amends the commencement provisions in relation to schedules 1, 2 and 3 of the bill to provide that these schedules commence on a day to be fixed by proclamation. This amendment is required to ensure the necessary amendments to the Telecommunications (Interceptions) Regulations 1987 are made prior to the commencement of schedules 1, 2 and 3 of the bill. The amendment is technical in nature. I commend the amendment to the committee.

Photo of Joe LudwigJoe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | | Hansard source

Labor do not oppose the amendment. We understand it is a technical amendment.

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

The Australian Democrats will also be supporting the amendment. Very briefly I wish to place on record—I thought I would do it in the earlier stages—once again our concern about the time frame. I notice the minister did not respond to the suggestion by Senator Ludwig regarding an outline for proceeding, so I take that to mean that we are going to go through the running sheet as suggested and see what happens.

Photo of John HoggJohn Hogg (Queensland, Deputy-President) Share this | | Hansard source

That is quite correct: I am proceeding through the running sheet.

Question agreed to.

10:27 pm

Photo of Joe LudwigJoe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | | Hansard source

by leave—I move opposition amendments (1) and (19) on sheet 4882:

(1)    Page 3 (after line 8), after clause 3, add:

4 Sunset clause

The amendments set out in Schedule 2 of this Act cease to be in force on 30 June 2011.

(19)  Schedule 2, page 63 (after line 30), at the end of the Schedule, add:

14 After section 61A


61C Review of operation of B-party warrants

        (1)    The Minister must cause an independent review of the operation of warrants to which subparagraph 46(1)(d)(ii) or (1)(a)(ia) applies to be undertaken within 12 months of the third anniversary of the commencement of the Telecommunications (Interception) Amend-ment Act 2006.

        (2)    A person who undertakes such a review must give the Minister a written report.

        (3)    The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 5 sitting days after the Minister receives the report.

I move these amendments together because they relate to sunset and review, or review and sunset as the case may be, so it is more appropriate to deal with them together. A range of submitters suggested that the legislation should be reviewed after a period of time and/or that the inclusion of a sunset clause was necessary. In fact the Law Council themselves indicated during the committee process—in their submission and in their oral evidence to the committee—that an independent review two or three years after commencement, and a sunset clause, should be incorporated into the legislation.

Mr Blunn, in the Blunn review, recognised that there was a strong case for regular reviews at three-yearly intervals. In fact, he went a bit further and even proposed effectively, in my words, a standing committee. We think at this juncture a sunset provision to ensure that the legislation is reviewed and, given the nature of it—particularly the way B-party provisions would operate—is a necessity, and we see no reason why the government cannot adopt this provision. It is not technical in nature; it is one that the government has recognised in other legislation of this type. It is one that they have, in fact, embodied in other legislation of this type themselves, in the criminal area, in dealing with terrorist legislation and in other areas of that ilk. And, of course, Dr Clapham from the Office of the Privacy Commissioner supported a review. In fact, he went to the entire act and felt that provisions should be made in these amendments.

The legislation committee recommended the B-party provisions expire in five years with a review at an earlier time encompassing the broader issues about the suitability of issuing authorities. They are matters that should be dealt with. The committee made those recommendations after hearing the evidence of a range of submitters. The government should be persuaded by the force of a unanimous committee. I should say it was a majority committee, at least between government and opposition. I neglected to admit there was another report but I am sure you will go to that, Senator Stott Despoja. In a majority report dealing with these issues the committee accordingly recommended that the B-party provisions expire in five years, with a review at an earlier time.

Labor supports this recommendation for two reasons. This bill does not bring about the full recommendations of the Blunn report. We are still to see that finalised and, in fact, it is likely to take some time. Therefore, as we will be revisiting this bill, it does obviously provide us with an opportunity to also be able to review it as well. As the B-party intercept regime will be a new component of the legislation it is important that it is also reviewed to see if the regime is meeting the issues that have been raised—that is, it is meeting privacy concerns, that the safeguards that surround those privacy issues are working and that law enforcement agencies are not over-reaching in the B-party intercepts regime. For those reasons Labor supports the amendments and seeks that the government agree that they are both necessary to ensure that the legislation will, in fact, work the way it was intended.

10:33 pm

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

The Australian Democrats will be supporting the amendments moved on behalf of the Australian Labor Party by Senator Ludwig. He is quite right to point out that there was a supplementary report with ‘additional dissenting comments’, which I think was the long-worded title of the Australian Democrats’ report. I wish to emphasise the fact that we did do a report to that committee—that we were involved in that committee process albeit with a truncated time line. Nonetheless, I think it was—as it always is—a worthwhile process to allow people to provide submissions, both in writing and verbally, and to hear from and question the department, which, as always, is keen to present to the committee and I think is usually extremely helpful in answering our questions.

I think there are, though, very good reasons for a review of this legislation and in particular—dealing with the first amendment of the Labor Party—the proposed sunset clause. Predictably, I would argue that a five-year period is insufficient, but it is better than the bill in its current form. Senator Ludwig has, of course, referred to the recommendations of the committee, and the Democrats actually support the recommendations of that majority committee report. We think that they should have gone further, hence the additional recommendations contained in my report. Nonetheless, the committee view in relation to a sunset clause and independent review is a recommendation that we endorse. The actual committee report says:

The Committee considers a sunset clause to be appropriate for the B-party interception warrant provisions; it would serve as a catalyst for a review of the whole telecommunications interception structure, and in the light of advancing technology would offer an opportunity to assess the adequacy or otherwise of this regime.

So, in light of this recommendation that has strong support from those of us who were involved in the committee process, but also support from members of the government because, as Senator Ludwig has quite rightly pointed out, this is a majority recommendation from a majority committee report—the chair’s report—I would hope that the government would consider it. I do not think this is a particularly scary amendment. I think it is an accountable amendment that makes a lot of sense and I would hope that the government would support it and, if not, would outline specifically what the problem is with this particular amendment.

It would be better if we were dealing with a time frame of, say, three years. Anything sooner—when you are dealing with such fundamental, such significant legislation—I think is good. I think we should recognise the Blunn report recommendations in relation to a three-year period in order to, if nothing else, keep up to date with evolving technology—so it is not even from the perspective of guarding rights or protections or understanding how the act is operating or whether there are infringements or issues. From the perspective of the technology and the rapid advancement of that technology, surely there is a very strong argument for regular review and, indeed, update. I think it provides a good opportunity to address whether or not the specifics of the warrant regime are working and are appropriate.

In relation to amendment (19), while that deals specifically with the B-party warrants, I think the arguments apply to both. I think certainly there is a strong case for independent review, as has been proposed. The Australian Democrats strongly support any kind of public accountability provision. Obviously, there is built into this amendment the idea of the tabling of that particular report or review in both houses of parliament, which is a stipulation that we would always make. So, with some proviso, there is certainly support from the Australian Democrats for this amendment—in fact, for both amendments.

10:38 pm

Photo of Chris EllisonChris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | | Hansard source

The government does not think that these amendments are particularly scary, as Senator Stott Despoja mentioned. The government does not think they are necessary for two reasons. Firstly, as I have indicated earlier, the government will be considering further recommendations from the Senate Legal and Constitutional Committee report. That in itself is an ongoing consideration which has been firmly committed to by the government during the course of this year.

Added to that, in relation to the B-party warrants, government amendments (16) and (17) will involve more detail in relation to the reporting of B-party interceptions. That will provide that, in the reporting to the parliament, there will be more information given in relation to those B-party interceptions. That in itself will provide the parliament with an ability to be well informed of the B-party interceptions. That in itself is an aspect of accountability, scrutiny and, indeed, review if the parliament wants to review any of those reports. We see reports in this chamber all the time. There is debate and discussion. We think that, for those two reasons, it is unnecessary. We have had the Blunn report, which was extensive. We have acted on that. We have had the Senate Legal and Constitutional Committee report.

Indeed, the genesis of all of this goes back to 2004. I remember very clearly the difference between the Australian Federal Police and the Attorney-General’s Department which was much publicised at the time. That was in relation to the differing views to these interceptions, which were made more problematic by virtue of modern technology. The question then being asked was whether an email was a letter or a telephone call, as someone put it at that time. We had to address that. We have been doing that over the last two years. We have had the Blunn report and Senate committee reports. I really do think that to incorporate any further review mechanism in this legislation would be unwieldy, particularly when you have regard to those other two matters that I mentioned.

10:40 pm

Photo of Joe LudwigJoe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | | Hansard source

I will not miss the opportunity, if you are going to have a look at this provision a bit further, to also impress upon you that there are two parts to recommendation 25. We did not seek to move an amendment to give effect to the second part, because it really surrounded a broader number of issues. That encompassed the suitability and effectiveness of the AAT members in the warrant-issuing regime together with consideration of ways in which the act may be amended to take account of emerging technologies such as peer-to-peer technology. There are a couple of others that I will not go to now given the lateness of the hour, but there are a number of emerging technologies.

Just so that it is on the record, if you are going to look at it, it is not limited to only those matters of review of the legislation to date but also it encompasses those issues that are a bit broader in compass. There is an important consideration to be looked at about the issuing authority. There is a significant number of these warrants being obtained through the issuing authorities and, more particularly, reliance placed on the AAT. I think there needs to be an explanation as to why that is, if not an examination to ensure that the system is working effectively and efficiently—also that it is not too efficient, in the sense that privacy considerations are not overlooked. That matter should also be included.

Question put:

That the amendments be agreed to.

10:50 pm

Photo of Bob BrownBob Brown (Tasmania, Australian Greens) Share this | | Hansard source

I move Greens amendment (1) on sheet 4889:

        Schedule 1, page 4 (after line 4), before item 1, insert:

1A After section 2


2A Limitations of operation of Act

It is the intention of the Parliament that:

        (1)    To the extent that there is any inconsistency between this Act and Australia’s obligations under international treaties including the International Covenant on Civil and Political Rights, Australia’s obligations under those treaties prevail and override the operation of this Act.

        (2)    Nothing in this Act authorises the interception of communications:

             (a)    of a person unless the person is suspected of engaging in the planning of, or other involvement in, terrorist acts or murder;

             (b)    where those communications contain information which is:

                   (i)    the subject of legal professional privilege; or

                  (ii)    derived from information that is the subject of legal professional privilege.

             (c)    where those communications contain information:

                   (i)    the subject of doctor-patient confidential medical communications; or

                  (ii)    derived from information that is the subject of doctor-patient confidential medical communications.

             (d)    of Federal or State Members of Parliament;

             (e)    of High Court judges or Federal Court judges.

The amendment is to limit the operation of this legislation. It badly needs its wings clipped. That is of course not going to happen, because the government has the numbers.

Photo of Ron BoswellRon Boswell (Queensland, National Party) Share this | | Hansard source

Thank goodness for that.

Photo of Bob BrownBob Brown (Tasmania, Australian Greens) Share this | | Hansard source

Senator Boswell, who has not been about tonight, says, ‘Thank goodness for that.’ You are waiting for the 11 o’clock finish, aren’t you? Because he has not been here for the debate, he must not know what is in this legislation, or he would be horrified.

The Greens amendment limits this legislation, which allows government agencies—a whole stack of them—to catch SMSs and listen in to phone calls, mobile communications and all of the things totally innocent Australians use these days. We are wanting to limit that massive intrusion on the right of Australians not to be snooped on by government when they are innocent. This is not about terrorism; this is about a whole range of things—taxes, quarantine and a whole pile of other things.

Senator Boswell might be amazed to know that totally innocent Australians can have their intimate phone conversations with their loved ones tapped by a whole range of government snoops, not in the name of terrorism—it has nothing to do with that—but a whole range of other issues. The Greens are here doing the Liberals’ job of defending the rights of the Australian individual—time honoured since our democracy came into being. Many Liberal legislators of the past would be horrified to know that a conservative government which has the numbers in both houses of parliament has taken this opportunity to legislate against those rights.

The Greens limitations are very short of the mark. They should be much more complex, but we recognise the number situation in here and we are just prepared to put some things on the line. The first part of this amendment—if it were to be adopted—would ensure that:

(1) To the extent that there is any inconsistency between this Act and Australia’s obligations under international treaties, including the International Covenant on Civil and Political Rights, Australia’s obligations under those treaties prevail and override the operation of this Act.

I will be interested to hear what the Minister for Justice and Customs has to say about ensuring that Australians have the protection of an international covenant on rights that we have been trying to get China not only to adopt—as it has—but also to implement and that we are trying to get countries with dictatorships to take notice of. Australia was busy in formulating and bringing into being the International Covenant on Civil and Political Rights but, as has been pointed out by senior legal authorities in this country, this legislation cuts right through the safeguards that that covenant, which Australia has ratified, should be giving to Australian citizens who are innocent of any wrongdoing.

The second Green qualification on this act reads this way:

(2) Nothing in this Act authorises the interception of communications—

and you can read there: ‘by government snoops under the direction of people like Attorney-General Ruddock’—

(a) of a person unless the person is suspected of engaging in the planning of, or other involvement in, terrorist acts or murder;

Let us qualify this legislation by preventing people from being involved in violent crime. The minister might like to say what the limitation is if it is not terrorist acts or murder. Where does the throw of the net in this legislation stop? The amendment continues:

(2) Nothing in this Act authorises the interception of communications:

(b) where those communications contain information which is:

(i) the subject of legal professional privilege; or

(ii) derived from information that is the subject of legal professional privilege.

(c) where those communications contain information:

(i) the subject of doctor-patient confidential medical communications; or

(ii) derived from information that is the subject of doctor-patient confidential medical communications.

We ask: why should innocent people be opened up to their phones being tapped and their computers being intruded upon for personal information, particularly where they expect they are confidentially passing information to their professional legal adviser or their doctor? If the government or, for that matter, the opposition, which supports this bill, are not prepared to support this vital Greens amendment, let us hear from them as to why the confidentiality expected between innocent citizens and their doctor or their lawyer should not be respected anymore in this great democracy of ours, which this government is eroding day by day as parliament sits—short as that time might be now that the government has control of the Senate. The Greens amendment goes on to say:

(2) Nothing in this Act authorises the interception of communications:

(d) of Federal or State Members of Parliament; or

(e) of High Court judges or Federal Court judges.

I ask, through you, Temporary Chairman Watson, of the Minister for Justice and Customs how the government could possibly be contemplating, as it does in this legislation, allowing spying by government agencies on members of the High Court of Australia or judges of the Federal Court of Australia. It is dangerous territory, don’t you think, Temporary Chairman? And it is all the more remarkable because this can be done not related to any act of terrorism or violence—it might be a taxation matter. It is dangerous territory indeed because it crosses that barrier, the separation of the functions of the judiciary and those of the executive—in this case, the Howard government which, as my colleague Senator Milne has said on a number of occasions, stands before the flag, puts its wattle in its lapel and calls on the name of ANZAC but, like no government before, rips away piece by piece at the time honoured conventions and protections of the right of the individual in this country. It is extraordinary, is it not, that the Greens are standing in defence of those rights, as the Howard government strips them away?

Progress reported.