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(Abbott, Tony, MP, Gillard, Julia, MP)
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Cybercrime Legislation Amendment Bill 2011
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Tuesday, 23 August 2011
Mr HAWKE (Mitchell) (19:57): I also rise to support the Cybercrime Legislation Amendment Bill 2011 as proposed by the government, taking account of some of the recommendations of the Joint Select Committee on Cyber-Safety. As deputy chair of that committee I was privileged to be present during the inquiry into this piece of legislation and I want to endorse the recommendation of the House that we did inquire into it. When you are creating and amending law in the criminal space it is very important that the government take the time to ensure that it gets it right. In the recommendations that the committee put together, it has attempted to demonstrate to the Attorney-General and the government ways in which the bill can be improved to ensure that community expectations are met, and that it recognises the very sensitive nature of the material which the Cybercrime Legislation Amendment Bill is dealing with.
It is true that in the modern era the globalisation of communication technology has brought a lot of benefits, but it has also enabled transnational crime to flourish. It is a constant frustration of constituents, businesses and entities within Australia and around the world today that often crime is transnational. It has been elusive; it has been hard for agencies to track down, detect, identify, prosecute successfully and ensure that the crime is prevented. Hacking, the spread of malware, denial of service attacks on private corporations, attacks on the institution of government and attacks on the Australian government in recent times make up the modern face of cybercrime. Large-scale online fraud can net organised crime vast profits. We know of all the scams that occur on the internet today. But we are no longer dealing with those small-scale hackers; we are dealing with serious criminal elements using the internet and telecommunications to achieve their criminal ends. Of course, anytime you are amending the Telecommunications (Interception and Access) Act, especially to sign up to an international convention, which is what we are doing here—we are fulfilling our obligations to the Convention on Cybercrime, which Australia is now becoming a party to—it is important that you thoroughly examine the ramifications for ordinary Australian citizens. In doing so, the Joint Select Committee on Cyber-Safety did take time to analyse what the bill does and how the bill would operate in relation to fulfilling our obligations on the Convention on Cybercrime.
There were four main aspects to this bill. The first was to introduce a new mechanism for the preservation of communications to prevent the destruction of potential evidence until a warrant for access is obtained. The new preservation mechanism will be available to law enforcement agencies and to ASIO. The purpose of a preservation notice is to ensure that potential evidence is not destroyed. This it is a worthy objective. We do not want evidence of criminal activity destroyed; we want to ensure that it is preserved in this electronic communication format. It is a worthy intention of the bill. Access to the material by a stored communications warrant, which is available under the Telecommunications (Interception and Access) Act, is appropriate and there are the safeguards in relation to this material.
Second, the bill also requires the AFP to preserve communications data on behalf of a foreign country when requested to do so. This can be interpreted as controversial and indeed has raised several questions in members' minds in this place about the nature of that foreign access and the nature of that request. In a certain sense this does rely on the benign nature of our police forces and on their good intentions. That is why it is appropriate that parliament thoroughly scrutinise legislation in this regard and ensure that we have those appropriate safeguards. It is important to note here that there is no access to this material without a warrant and that the AFP can only apply for a warrant when the Attorney-General and the Minister for Home Affairs have agreed to a formal request for mutual assistance from the foreign country.
Thirdly, the bill allows for the AFP to share telecommunications data—that is, non-content data—with a foreign country without the need for a formal mutual assistance request. This may only occur where that data has already been obtained for a domestic investigation. It is intended to speed up international cooperation where perpetrators may also be operating overseas. The AFP can share that telecommunications data with a foreign country without formal mutual assistance request but only where that data has only been obtained for a domestic investigation. Again we see the way that this will actually work in practice.
Fourthly, the Ombudsman will have oversight of the preservation regime and the stored communication warrants obtained for a foreign country. The Inspector-General of Intelligence and Security will have oversight of ASIO's use of the preservation regime for intelligence purposes. The Ombudsman's role in this type of legislation is entirely appropriate and should be carefully monitored to ensure that all of the intelligence that is gathered and the telecommunications data that is stored is appropriately done so and in accordance with legislation and the parliament's intentions.
There have been several concerns in relation to this legislation. I want to say to those commentators and people out there who have expressed some concern that I do not have an issue with people expressing concern about legislation proposed by this House. It is appropriate. People ought to thoroughly scrutinise the activities of their parliament and what they seek to do. I am happy to say that from our investigations and the 13 recommendations that the Joint Select Committee on Cyber-Safety made, we are quite satisfied that the intentions and the provisions in this bill will be appropriate and will provide law enforcement agencies with the powers they need without seeking to expand the powers of those agencies massively. It is important to be clear that neither the convention nor the bills seeks to implement a general data retention scheme. Naturally, of course, the instinct of people concerned about digital liberty and the right of people to privacy online would be concerned about a general data retention scheme. There will be no general data retention scheme from the provisions of this legislation.
I have been the first to criticise the government on internet filtering and massive government intervention into the online space. I would be the first to stand in this place and say that if I believe there was mass surveillance of internet usage being proposed, I would certainly speak out about that. I have satisfied myself that this is an appropriate and targeted, focused piece of legislation that will enable our law enforcement agencies to do their job and allow Australia to cooperate with international agencies in a way that will not violate the rights of Australian citizens. The powers available under the bill and indeed the powers that already exist under the Telecommunications (Interception and Access) Act can only be activated where there are legitimate law enforcement requirements or, in the case of ASIO, legitimate security purposes. Quite importantly, no country can demand that communications traffic data be transferred to them, and I think that is entirely appropriate, considering the nature of different countries and regimes around the world. Not everybody has the benefit of living in a Western democratic society as we do.
There have been other untrue claims; for example, that countries such as China could obtain large volumes of communications data about dissidents or about so-called political crimes through people in China communicating with people in Australia. That is not the intention of this legislation, and I am certain that would not be accessed by an Australian Attorney-General or other agency in that regard.
Access to the content of the communications is provided under warrant only after a mutual assistance request has been agreed to by the Attorney-General. So again there is a dual safeguard of requiring a warrant and a mutual assistance request being agreed to by the Attorney-General of the day. While it is true that the bill does not limit the sharing of telecommunications data only to countries that are party to the convention, it also makes no change to the range of countries that police can provide police-to-police assistance to. While that may be concerning to some people—that it does not limit the sharing of this data to countries that are signatories to this convention; and certainly that is a cause for concern—I think, in the era we are in, that does not immediately raise a series of problems or issues that must be addressed by this legislation. It is of course something we would have to continue to monitor, as indeed we will be monitoring our international conventions and how this legislation will perform. In other words, police cooperation will happen on the same basis that it happens now. As I said before, we often rely on the benign nature of our police forces in Australia, their goodwill and their obedience to the law. There are some countries where that is not the case, where countries suffer from a police agency or force that is not so benign or as high quality as Australia's. Cooperation is still important for our agencies. That is something we will continue to monitor.
The bill does not increase ASIO's powers or allow ASIO to share communications with foreign counterparts either. So any commentary in relation to those concerns has been misstated.
The committee was fortunate to hear about 23 submissions and several witnesses on Monday, 1 August. We also had the opportunity to carry out an inspection of the Australian Federal Police high-tech crime operation facilities in Barton. I think all of us were sensitive to the expansion of covert policing powers and we were especially mindful of the powers that involve access to private communications. I think this legislation ensures that the proper standards and safeguards are met. The recommendations we made to the Attorney-General were realistic, modest and practical, in the main. We are happy that he has adopted some of the recommendations. I think perhaps others could have also been adopted, but that is no reason for us to change our position in relation to this legislation or indeed alter our position on this bill. The process of the committee scrutinising the legislation and ensuring that we have suggested improvements is a worthy one. We were able to satisfy ourselves about many of the assertions that have been around in public commentary about some of the provisions contained within this bill.
The general approach that we took, and which I think the government has adopted, was to ensure that thresholds that apply to domestic investigation were applied equally to foreign countries seeking access to communications material. I think that is no less than any Australian citizen would expect; that when we are signing an international convention those international agencies be required to meet the same standards as domestic agencies. We have also proposed that AFP guidelines on police-to-police cooperation in possible death penalty scenarios be tightened and should only occur in exceptional circumstances and with the consent of the relevant ministers. I think that the Attorney-General and the government took a positive approach in relation to that very tricky area of the operation of this legislation and this convention in relation to countries that have the death penalty. Considering Australia's formal and stated position on the death penalty, there was a constructive approach taken by members of the government and we have a constructive outcome with which I am satisfied that we will not be engaged in many situations where this will be a big concern. Of course, in some situations it may be possible that this will arise, but there will be mechanisms for the parliament and for Australians to satisfy themselves that this legislation is not in any way opposing Australia's position on the death penalty.
We have also made quite a valid suggestion that police be required to consider the range of factors set out in the mutual assistance act before sharing telecommunications data obtained during domestic investigations with a foreign counterpart. Some of those things that would strengthen some of the provisions of this bill that have not been adopted could also be considered as future amendments once the operation of these provisions becomes commonplace. This will lead to a general improvement in law enforcement and cooperation between international agencies in this space. I think the rights of Australians will be preserved, and of course the Privacy Act already applies. There was one minor concern in relation to carriers and telecommunication service providers and the retention of data. I want to make it clear that this legislation may require telecommunications providers to hold information. The telecommunications providers are subject to the Privacy Act and other acts of this place that would disallow them from using that information for any legitimate commercial or other purpose. It is entirely appropriate in an era where large telecommunications service providers have access to a lot of our information that those safeguards are also in place.
The committee that inquired into this bill was quite satisfied about its provisions. The coalition supports this legislation and legislation that enhances our ability to cooperate with international policing forces to better protect Australians and prosecute those people engaged in serious cyber and transnational crime.