Ursula Stephens (NSW, Australian Labor Party, Parliamentary Secretary Assisting the Prime Minister for Social Inclusion) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

TELECOMMUNICATIONS INTERCEPTION LEGISLATION AMENDMENT BILL 2008

The main purpose of this bill is to amend the Telecommunications (Interception and Access) Act 1979 (the TIA Act) and Surveillance Devices Act 2004 (the Surveillance Devices Act) to ensure officeholders can validly authorise others to act on their behalf in performing certain legislative functions.

The bill also implements several technical amendments.

This bill does not alter or expand any powers of security or law enforcement agencies in relation to telecommunications interception, stored communications, access to data, or surveillance devices.

Both the TIA Act and the Surveillance Devices Act contain several definitions that are intended to confer power on designated officeholders to authorise others to act on their behalf.

For example, in relation to the Australian Federal Police, the term ‘certifying officer’ in subsection 5(1) of the TIA Act includes the Commissioner and a Deputy Commissioner of Police. The term also includes a senior executive AFP employee who is a member of the AFP who is authorised in writing by the Commissioner of Police.

Reference to an officer being authorised in writing also appears in the terms ‘certifying person’ and ‘member of the staff of a Commonwealth Royal Commission’ in subsection 5(1) of the TIA Act and the definitions ‘appropriate authorising officer’ and ‘law enforcement officer’ in subsection 6(1) of the Surveillance Devices Act.

In the Hong Kong Bank case (Hong Kong Bank of Australia Ltd v Australian Securities Commission (1992) 108 ALR 70), the Full Federal Court considered that a similarly worded provision in the Corporations Law could not be read as providing the source of power for the relevant authority to make the authorisation referred to in the provision. Rather, some other source of power, such as an express authorisation making power, was needed.

While the relevant definitions in the TIA Act and the Surveillance Devices Act can be distinguished from the section examined in the Hong Kong Bank case, there is some risk a court could find that the affected provisions do not confer power to make an authorisation. This could mean that actions taken by a purportedly authorised person are invalid.

Such an outcome would undermine the effective operation of the Acts and could expose persons who believed they were acting in accordance with the legislation to legal challenge.

The bill addresses this issue by inserting express authorisation powers in order to establish a clear and separate legislative basis for office holders to make authorisations and for authorised persons to perform the functions associated with their designated role.

The bill also ensures the validity of actions taken by authorised persons under the existing provisions by inserting new sections that treat persons authorised to act under the current provisions as if they had been authorised under the Act as amended by this bill. These provisions will ensure that all authorisations whether past or present are made on a consistent legislative basis.

The bill does not expand interception and surveillance powers available to agencies, nor does it increase the range of office holders who are authorised to undertake certain functions under the TIA Act or the Surveillance Devices Act.

The bill also includes several technical amendments to the TIA Act that will improve the effective operation of the Act by updating references in the Act to the Victorian Office of Police Integrity and correcting drafting errors. Again, these amendments do not expand the powers of law enforcement or security agencies.

The Victorian Government is in the process of establishing the Office of Police Integrity as a stand alone authority under new legislation. In order to preserve the capacity of the Office to exercise its powers under the TIA Act once the new Victorian Act is proclaimed, this bill will substitute references to the current Act with the details of the new legislation.

The bill also corrects two drafting errors.

The first is to substitute an incorrect reference to the term ‘certifying person’ with the correct term, ‘certifying officer’.

The second removes a reference to several sections of the TIA Act that were repealed in the 2006 Amendment Act.

These technical amendments will ensure that the TIA Act is clear and relevant in the obligations and powers it confers on telecommunications carriers and law enforcement agencies.

In conclusion, this bill will ensure that the legislative framework for obtaining telecommunications and surveillance based information necessary for law enforcement and national security purposes is relevant, clear and effective.

I commend the bill.

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

The Telecommunications Interception Legislation Amendment Bill 2008 amends the Telecommunications (Interception and Access) Act 1979 and the Surveillance Devices Act 2004 to ensure that certain office holders can validly authorise others to act on their behalf in performing functions under those acts. The bill also proposes a number of minor technical amendments which tidy the telecommunications interception and access regime so that it is current and accurately reflects the status of related regimes.

The genesis of the bill is a decision of the full court of the Federal Court in the case of Hong Kong Bank of Australia against the Australian Securities Commission, a decision of that court as long ago as 1992. The court held that a provision of the Corporations Law that defined a ‘prescribed person’ to include a person authorised by the commission to perform certain functions could not be construed so as to confer the power to make the initial authorisation.

The bill proposes to amend the acts to correct a lacuna by including definitions of ‘certifying officer’, ‘certifying person’ and ‘member of the staff of a Commonwealth royal commission’. Each category of person may now be authorised to perform functions under the acts. There is some uncertainty as to whether those definitions might fall foul of the rules of construction outlined by the court in the Hong Kong Bank case. The bill seeks to amend the acts to include specific powers to authorise the relevant persons to perform the defined functions. The bill also makes some technical amendments to maintain the currency of the telecommunications interception and access regime and to support the new Victorian Office of Police Integrity. There are two main provisions within the amendment: schedule 1, which relates to the Surveillance Devices Act 2004, and schedule 2, which relates to the Telecommunications Interception Act 1979.

The only mystery about this bill, which is uncontroversial, is how it came to be that an anomaly in the legislation which was created by a judicial decision as long ago as 1992 was not detected before now. I consulted the Bills Digests prepared by the Parliamentary Library and they merely tell us that a drafting direction in 2006 which generated this bill was the result of provisions coming to the attention of drafters at the Office of Parliamentary Counsel while preparing a prior bill. The Attorney-General’s Department subsequently moved to eliminate the risk that the Office of Parliamentary Counsel identified. I think the parliament is indebted to the alert legislative draftsmen who spotted a lacuna that had lurked beneath the statute law of the Commonwealth like a sunken battleship for some 16 years, imperilling litigants passing across its still waters, and have now at last eliminated that lacuna from the law. The opposition supports the bill.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I would like it noted that this is not officially my first speech. I apologise for the quality of my voice—it may not be any kind of speech! The Australian Greens acknowledge that the amendments proposed by the government through the Telecommunications (Interception and Access) Amendment Bill 2008 are non-controversial. The amendments provide clarity and substantial detail about exactly who has the authority to issue evidentiary certificates to listen in on the phone calls, voicemails, text messages and emails of Australians.

However, the surveillance activities covered by the legislation are highly controversial, as is clear through past debate in this place about the effectiveness of the checks and balances to ensure that privacy rights are upheld. I would like to take this opportunity to note that this week is National Privacy Awareness Week, which the Privacy Commissioner has deemed ‘an opportune time to review your practices and procedures for handling personal information’.

On 14 May this year an amendment was proposed by Senator Bartlett for an independent and periodic review of the implementation and oversight of the act—an amendment that was rejected. This legislation, which the government had serious concerns about when they were in opposition, should be reviewed to ensure that it is consistent with Australia’s international treaty obligations. The Australian people should be provided with evidence that this level of surveillance is actually necessary and is being used in successful prosecutions. It should also be reviewed to ensure that necessary, lawful and proportionate access by law enforcement agencies to telecommunications data is balanced with the public’s right to communicate free from surveillance.

Privacy is protected in this act in two ways. Firstly, authorities that issue warrants are required to take privacy into account before they issue these warrants, and they are not to be issued if alternative means of investigation are possible. Secondly, there are several requirements as to what may be done with the content of intercepted messages. However, it is very concerning that only a very small number of warrants are rejected or withdrawn on privacy grounds. Of 3,287 warrants sought in the year to June 2007, only seven were rejected or withdrawn. The total number of warrants issued in 2006-07 is greater than that in the previous reporting period and actually exceeded the number of warrants issued in the United States. Over the same period, 2,929 warrants were issued in Australia as compared to 1,839 in the United States.

This means that an Australian telephone is 23 times more likely to be bugged than an American telephone. Why is that? Does the government believe that there is something in the Australian character that demands such a high degree of surveillance and eavesdropping? In the US, only judges may issue telecommunications warrants, but in Australia almost all are issued by nonjudges, as we can see from the list of authorised personnel listed in the legislation before us today.

Australians should be able to communicate with their friends and colleagues without a range of organisations listening in. It must only be in extraordinary circumstances when that right to privacy is denied. And who exactly is being spied upon? Too often it has been people who are working for peace and human rights or organising using their democratic right to free expression that we hold dear in this country. Why are these people under surveillance? In conclusion, the Greens recognise that these are sensible and non-controversial amendments to some deeply troubling and controversial legislation.

Ursula Stephens (NSW, Australian Labor Party, Parliamentary Secretary Assisting the Prime Minister for Social Inclusion) Share this | Link to this | Hansard source

I would like to thank the senators for their contributions to the debate on the Telecommunications Interception Legislation Amendment Bill 2008, and I particularly thank Senator Ludlam for his first contribution to a legislative debate. In terms of the issues that have been raised, can I advise Senator Ludlam that the Telecommunications (Interception and Access) Act has been the subject of extensive review in recent years—including most recently the Blunn review—and it incorporates considerable safeguards, including robust reporting and monitoring oversight. In advising him of that, I would like to acknowledge his privacy concerns but assure him that this government is not intent on unduly intervening in people’s privacy where that is not appropriate.

The bill is important in maintaining the effectiveness of the legal framework that underpins the lawful interception of telecommunications and surveillance activities. Replicating the existing authorisation powers in stand-alone provisions does not alter or expand any powers for security or law enforcement agencies under the Telecommunications (Interception and Access) Act. The amendments to the references to the Victorian Office of Police Integrity will ensure that that office can continue to exercise its existing interception powers following the establishment of the office as a stand-alone agency under the Victorian Police Integrity Act 2008. The bill also removes redundant references to provisions in relation to communications carriers, reporting obligations that were repealed following the passage of the Telecommunications (Interception) Amendment Act in 2006. These technical amendments to the interception regime will improve, clarify and simplify the operation of the T(IA) Act. In doing so, the bill is a further step in the ongoing modernisation of Australia’s laws for accessing telecommunications information for law enforcement and other national security purposes.

In relation to the issue raised by Senator Brandis—well spotted, Senator Brandis!—the express powers issue was flagged during the drafting of the last TIA bill, and prior to this the relevance of the outcome in the Hong Kong Bank case had not been identified. Now that it has been, we have moved quickly to address the issue to maintain the effectiveness of the legal framework that underpins the lawful interception of telecommunications in surveillance activities. I commend legislation to the Senate.

Question agreed to.

Bill read a second time.