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Tuesday, 23 August 2011
Page: 9072


Mr KEENAN (Stirling) (18:37): I rise to talk about the Cybercrime Legislation Amendment Bill 2011. The coalition broadly support the purpose of this bill, which is to require carriers and carriage service providers to preserve telecommunications data for specific persons when requested to do so by domestic agencies or by the Australian Federal Police on behalf of foreign countries.

In Australia, 'cybercrime' has a narrow statutory meaning, as used in the Cybercrime Act 2001, which details offences against computer data and systems. However, a broader meaning is given to 'cybercrime' at an international level. In the Council of Europe's Convention on Cybercrime, 'cybercrime' is used as an umbrella term to refer to a range of criminal activities, including offences against computer data and systems, computer related offences, content offences and copyright offences.

Australians have been quick to adopt the internet in their lives and in their businesses. For many Australians, it is an essential part of our daily lives for communicating with family and friends, for studying, shopping, paying bills and for doing myriad other things that the internet has enabled. Similarly, businesses embrace the internet and other information technology to improve efficiency and quality of service, and to gain access to new markets. Regrettably, with its extensive use the internet has also created new prospects for criminal activity. Criminals seek to access our personal and corporate secrets, steal our resources and intimidate internet related businesses. Additionally, the global community continues to experience an increase in the scale, sophistication and penetration of cybercrime.

As the extent and the importance of electronic information have increased, so too have the efforts of criminals and other malicious actors who have now adopted the internet as a more convenient, anonymous and profitable method of conducting their criminal activities. I would like at this point to acknowledge the very good work that is done by our domestic agencies but in particular the Australian Federal Police, led by Assistant Commissioner Neil Gaughan, who do an outstanding job with the resources they have available and with the constant evolution of the cyber threat.

The bill itself seeks to make amendments necessary to facilitate Australia's accession to the Council of Europe Convention on Cybercrime. Several countries outside of Europe, including contemporary countries such as the United States and Canada, have done so also. The convention is the first international treaty on crimes committed either against or via computer networks. It deals predominantly with online fraud, online child exploitation and the unauthorised access, use or modification of data stored on computers. The convention's key objective is to pursue a common criminal policy by adopting consistent legislation and fostering international cooperation.

The bill's explanatory memorandum notes that the bill makes amendments to the Telecommunications Act 1997, the Telecommunications (Interception and Access) Act 1979, the Mutual Assistance in Criminal Matters Act 1987 and the Criminal Code Act 1995. The principal effect of the amendments is to require carriers and carriage service providers to preserve the stored communications and telecommunications data for specific persons when requested by certain domestic agencies or when requested by the AFP on behalf of certain foreign governments. Furthermore, the amendments: ensure that Australian agencies are able to obtain and disclose telecommunications data and stored communications for the purposes of a foreign investigation, provide extra territorial operation of certain offences in the Telecommunications (Interception and Access) Act, adopt the computer crime offences in the Criminal Code Act so that they have adequate scope, and create confidentiality requirements in relation to authorisations to disclose telecommunications data.

This bill has been the subject of two parliamentary inquiries—firstly, as is appropriate for any foreign treaty, by the Joint Standing Committee on Treaties. In April 2011, the committee were invited to consider Australia's proposed accession to the European convention and they made various comments on the issues as they saw them. The JSCOT report, while recommending that we do accede to the convention, identified a number of concerns that would arise from any enabling legislation. In addition to the loss of autonomy in future domestic law reform on the issue, there are concerns about privacy and jurisdiction. Submissions to the JSCOT review complained that the convention does not contain sufficiently robust privacy and civil liberties protections to offset the increased surveillance and information-sharing powers it implements. The powers governing the real-time collection and preservation of computer data were identified as being of particular concern to JSCOT. However, it was noted that powers for mass surveillance activity, such as wire-tapping or eavesdropping, are not enhanced by the legislation because the amendments are limited to telecommunications legislation only, which requires the issue of a warrant, and do not extend to surveillance devices. It should be noted that the acts sought to be amended by this bill contain their own fairly robust privacy safeguards and accountability mechanisms.

The proposed legislation may also have some effect on state and territory law, as some of them do not currently criminalise activity but will be bound by amendments to the cybercrime offences in the Criminal Code. I wish to particularly note the concerns of the Western Australian government as they were put to JSCOT. I quote their submission directly:

It is important to note that accession to the Convention should not create further bureaucracy which could act to stifle established links between agencies, particularly those formed at a State level. WA Police already has strong ties with a number of … service providers in attempting to tackle cyber crime. It would be detrimental if accession to the Convention were to erode these links.

Notably, there is a savings clause in the Criminal Code which provides that Commonwealth computer offences are not intended to limit or exclude the operation of any law in a state or territory. This clause will continue to apply. Despite these concerns, the bill has been welcomed by the information technology sector, including Telstra.

The second review that this bill has been subject to was conducted by the Joint Select Committee on Cyber-Safety. This happened after the bill was introduced to the House and was referred to that committee. The committee's review of the bill came up with 13 recommendations in its final report, which I note was only tabled last week, on 18 August. I particularly want to acknowledge the deputy chair of that committee, the member for Mitchell, who tabled the report, is very passionate about this area and has put a lot of effort into this inquiry. The committee made a number of detailed and technical recommendations which the coalition will consider. It is pretty unfortunate, we believe, that the Labor Party has rushed forward with this debate without having given those recommendations their due. The committee's report took the approach of ensuring that thresholds that apply to domestic investigation are applied equally to foreign countries seeking access to communication materials of Australians. One of the recommendations proposed that the Australian Federal Police guidelines on police-to-police cooperation in possible death penalty scenarios be tightened and should occur only in exceptional circumstances and only with the consent of the two relevant ministers—namely, the Attorney-General and the Minister for Home Affairs. The intended result of this proposal is that telecommunications data cannot be shared even at an early investigative stage in possible death penalty scenarios without the consent of both ministers. The member for Mitchell mentioned when he tabled a report late last week in the House that the committee also recommended that the police should be required to consider the factors, including the Mutual Assistance in Criminal Matters Act, before sharing telecommunications data retrieved during a domestic investigation with foreign counterparts.

The committee believed that this proposal would strengthen protection against data sharing in relation to a political offence as one example. They believe that the general privacy safeguard in proposed section 180F would be elaborated in more detail to provide greater guidance for the AFP. The coalition looks forward to considering these recommendations that have been put forward by the committee, and I again note the concern we have that the government has rushed this legislation into the House when the joint select committee has spent a lot of time looking at the legislation and has made 13 very sensible recommendations which clearly the government has not had a chance to consider properly.

The coalition supports the objectives of the bill and we are broadly satisfied that the safeguards it contains and other legislation within which it operates are effective. However, the government by bringing on this debate so soon after the tabling of the committee report has not excluded the possibility that further amendments may be required in the Senate. The coalition does, however, agree with the government that cybercrime poses a significant challenge for our law enforcement authorities and the criminal justice system as a whole.

The global and interconnected nature of the internet makes it easy for malicious actors to operate from abroad, especially from those countries where regulations and enforcement arrangements are weak. For this reason it is critical that laws designed to combat cyber threats are harmonised or at least compatible to allow for international cooperation between law enforcement agencies. With this objective in mind, the coalition will not be opposing this bill.