Mr McCLELLAND (6:34 PM) —The position of the Labor Party is that we will not be opposing the second reading of the Telecommunications (interception) Legislation Amendment Bill but we will be proposing an amendment to the second reading motion. Essentially, the need for the bill arises from technological change and also from the experience of law enforcement agencies in the field and court cases which have construed the power of those agencies in respect of telephone interception.

One issue that the bill will address—and I will not speak to all of the issues in detail—is that it will enable the Inspector of the Police Integrity Commission of New South Wales to have access to intercepted material for the purposes of the inspector's statutory functions. That has resulted from a request by the New South Wales government as part of its program to ensure that the New South Wales Police Force is beyond reproach. One must compliment the New South Wales government for its actions in that respect. The Inspector of the Police Integrity Commission will not have the power to intercept telephone calls but this bill will enable the inspector to receive intercepted communications. The opposition acknowledges the request by the New South Wales government and appreciates that the federal government has responded to that request.

The more controversial areas of this bill are in respect of expanding the categories of warrants that can be issued, and in particular a category of named person warrants. It must be said that those warrants are necessary—or at least a category of those warrants is necessary—because of technological change that has occurred, and they are primarily in respect of the ease with which people can communicate these days through a multiplicity of means. It is very easy, for instance, for those involved in criminal activity or, indeed, anyone to purchase—my daughters have recently purchased a prepaid phone card for a mobile phone—prepaid phone cards at relatively little expense and there are no formal account keeping records. Indeed, as I understand it, the SIM cards, which can be purchased from most of the telephone companies, can be inserted into the one phone so there is not even a necessity to purchase several mobile phones. It has been very easy for people, particularly those involved in drug trafficking, to use those facilities.

In terms of the development of these named person warrants, it has to be appreciated that the current powers in the Telecommunications (Interception) Act were framed over 20 years ago—in 1979. In those days there was a simple analog technology provided by Telecom, and interception was a very simple matter indeed. Of course, there is a whole range of technologies and a whole range of telecommunications companies involved in the industry in modern day Australia, and it is necessary to keep pace with them. There are rapid developments in multiple services that an individual can subscribe to at very little expense. Currently it has to be acknowledged that the present powers contained in the act are losing their efficacy as this technology is moving beyond them, so the opposition again acknowledges the need for that to occur.

There will be, under the scheme of the act, several categories of warrants. There will be telecommunications service warrants, which are those that currently exist in respect of identified phone services, and there will be named person warrants. It must be stated that one of the safeguards in respect of the obtaining of these named person warrants—and it is an important safeguard—is that the judge or member of the Administrative Appeals Tribunal issuing the warrant must be satisfied that no other form of telecommunications interception would be effective in the circumstances.

It has been argued on the one hand that these named person warrants are perhaps no different in principle from listening device warrants, which still can be obtained at a federal level. Certainly in state jurisdictions the facility exists where a listening device is inserted, and that will record the communication that comes from a person over what ever means, whether it be in the room or whether it be over some other form of electronic communication. Nonetheless, the telecommunications interception policy review committee acknowledged, while recommending the need to keep pace with technological change, that there were significant potential privacy issues that arose from these enhanced powers. The review said:

The policy review committee recommended a number of safeguards required to ensure that those same powers of scrutiny were transferred into the named warrant procedure. It must be said that our initial reading of the government's legislation is that those recommendations have been complied with, although we believe—and I think it is fair to say the government believes—it is necessary and appropriate for a committee to further examine those safeguards with a fine toothcomb.

The existing procedures and criteria for the issue of a warrant and record keeping and reporting requirements of the Telecommunications (Interception) Act will apply in full to named persons, and they are set out in sections 45 and 46 of the principal act. They require a federal judge or a member of the Administrative Appeals Tribunal considering an application to be satisfied that there is a telephone service involved, that that service is going to be used by a person who is suspected of having committed a serious offence as prescribed in the act, that the intercepted information would assist the information for prosecution purposes and, importantly, that other investigative methods are inappropriate or have been unsuccessful. These hurdles are currently in place. Indeed, a judge or a member of the Administrative Appeals Tribunal has specific powers to require additional information or clarification of any of these assertions, which have to be contained in a signed affidavit by the officer who applies for the warrant. However, in addition to those existing safeguards, before issuing a named person warrant the judge or member of the AAT must first be satisfied that other methods of investigation, including a less intrusive telecommunications service warrant, have been considered and are either unavailable or ineffective in the circumstances.

I should note at this point that consideration was given in the policy review report, to which I have referred, as to whether it was appropriate to include something analogous to the more stringent test that the United States has in respect of this form of warrant. They call them roving wire taps rather than named person warrants but, ultimately, the policy review recommended against further narrowing of the power. But it is worth flagging at this stage of the debate as an issue that should be appropriately considered by the Senate committee. Specifically, in the United States it is possible to obtain a roving wire tap warrant only if the applicant identifies the person believed to be committing the offence and establishes that there is probable cause to believe that the person's actions could have the effect of avoiding interception from a specified facility. In other words, if there were evidence along the lines of someone acquiring multiple SIM cards for the purpose of making their communications more difficult to track, that would be a factor that would enable the granting of one of these roving wire tap warrants in the United States.

In addition to the more stringent safeguards at the warrant issuing stage in respect of named person warrants, there will also be greater and more stringent reporting requirements. The agency involved, whether it be state or federal, must report information about the warrant and what was achieved as a result of its services to the relevant minister under whose control they operate. They must also account for why the named person warrant was used in a particular circumstance and why the more common form of fixed or standard warrant that currently applies was not used. Experience, certainly in the United States, suggests that the use of named person warrants or their equivalent, the roving tap warrants, is extremely rare. It is not the norm. The norm is for warrants to be the standard telephone interception warrants. For instance, the review committee heard that the Federal Bureau of Investigation issues about 1,100 warrants per year, and that is in the context of the massive population of the United States. Of those 1,100 warrants, only about 12 were required as roving wire tap warrants. Again, one would expect that in Australia's experience, with a much smaller population of course, the need for these named person warrants would be a rare occurrence and the exception rather than the norm. Again, those matters should appropriately be investigated by the committee.

I will turn now to the additional reporting requirements. In addition to the agency having to report to the relevant state minister, or at a federal level the federal minister, it is also necessary in the case of a state minister that they report to the federal Attorney-General. Agencies are required to keep records of warrants issued and details of warrants issued to bodies other than to the Australian Security Intelligence Organisation, which are kept on a general register maintained by the Commissioner of the Australian Federal Police. The general register is submitted to the minister every three months. Information is also required to be kept where a warrant is issued or revoked, details of the usage of the warrant, to whom the information gained from the warrant has been communicated and any arrests that have been made or are likely to be made because of the information gained from the warrant. The usefulness of the information obtained, together with the earlier information, must be provided within three months of the issue or revocation of a warrant. In other words, the report needs to constantly justify that these warrants have been effective and that they have not been issued willy-nilly. Indeed, there is another requirement for a register in respect of those occurrences of interceptions that have not resulted in criminal action as an additional safeguard.

In addition to that, the telecommunications carrier whose services were intercepted must give the minister details of action taken by the carrier within three months of a warrant ceasing to be enforced. This again cross-verifies exactly where the interceptions were made and, in the case of these multiple telephone services, will confirm what services were actually intercepted. The Commonwealth Ombudsman has the power to check the records of Commonwealth agencies. In respect of ASIO, there is a specific Inspector-General of Intelligence, who has a very detailed and extensive range of powers, who scrutinises its actions. The state agencies that have been certified as agencies appropriate for inclusion in the power to issue warrants must similarly have in place an inspection system by an independent office, such as an ombudsman. These requirements are in place as safeguards. We have to be aware of that and the community needs to be aware of that. They currently exist in the act so it is not as if these named person warrants are being brought into being without current safeguards or, indeed, without additional safeguards being brought into the legislation. We recognise that but, again, we believe it is appropriate for those powers to be scrutinised to see whether there are sufficient safeguards of human rights in the legislation. Again, a Senate committee reference is appropriate for that.

In addition to the law enforcement powers, there will also be greater powers for foreign intelligence gathering, through foreign intelligence warrants. It has to be appreciated that developments in technology, and in particular the fact that more and more communications are coming into Australia through digital technologies, have required an enhancement of those security gathering techniques. These matters can involve significant security issues for Australia, and it is necessary to constantly keep in mind that the greatest threat these days to the physical wellbeing of Australians is not invasion by a foreign power but from localised terrorist activity. In that context, it is important for the security of all Australians that we properly equip our security organisations and our intelligence organisations with the ability to, where necessary, intercept information that is relevant to their tasks of protecting Australia's security interests.

It must be borne in mind when we are considering these interception powers that they are not issued for trivial reasons. Under the Telecommunications (Interception) Act, category 1 offences which are relevant include murder, kidnapping and narcotics offences, together with conspiracy and assistance in those crimes. Those are very significant crimes, of course, and the community is always interested and justifiably concerned when they are reported. Category 2 offences also involve serious crimes which are punishable by at least seven years imprisonment. They would generally involve risk to life, personal injury or serious damage to property which is likely to present a danger to the safety of persons. They also include various forms of trafficking in prescribed substances, serious fraud, bribery or corruption of public officials, or serious loss to the revenue of the Commonwealth, a state or a territory. When we are talking about these powers, we are not talking about trivial instances; we are talking about serious criminal activity.

On the other hand, while we recognise it is necessary for any responsible government to properly equip their law enforcement and security organisations, it has to be constantly borne in mind that there are significant human rights issues. For instance, article 17 of the International Covenant on Civil and Political Rights provides that:

Article 8 of the European Convention on Human Rights is to similar effect.

It must be noted at this point that this parliament in the very near future will have to come to terms with whether we should have our own bill of rights. Even if it is not an attempt, as previously, to have a constitutional bill of rights, we could have a legislative bill of rights which includes a reference to the principles from the international treaties that I referred to. As members of this parliament we need to recognise—and the Australian people need to recognise—that we are the only Western democratic nation that does not have a bill of rights. Canada has the Canadian Charter of Rights and Freedoms; New Zealand has its own bill of rights; and recently the United Kingdom, which of course shares our common law principles of government and our legal system, has introduced a statutory form of a bill of rights. These are things we should consider when we are considering legislation such as this which has the potential—as the Telecommunications Interception Policy Review indicated—to significantly impinge on Australians' human rights. This is a time to reflect on whether our more general safeguards are appropriate and on whether we need to start moving towards having our own bill of rights, charter of rights, charter of citizenship—whatever it may be—which specifically recognises the fundamental rights of Australians and which allows those rights to be intruded upon only in exceptional circumstances.

There are several other issues which I will flag as matters which the Senate committee should investigate. The former Labor government, in 1994, introduced amendments to the Telecommunications (Interception) Act. These established what I have referred to briefly before—a special register showing details of warrants which have not led to a charge being laid. Several reports in the past have considered this issue, and there have been recommendations to require law enforcement agencies to notify citizens who have been the subject of interception in circumstances where no criminal law enforcement activity has taken place. That is something that requires consideration. The Telecommunications Interception Policy Review Committee thought this was unnecessary and that the maintenance of this register, which is provided to the Attorney-General, is sufficient. There were logistics issues considered and issues about information which may not in the short term have led to conviction but which may in the longer term have been necessary in a criminal case.

These issues are complicated but they require further examination, along with the practicality of the mechanisms, and a Senate committee should consider them. I should also note for the record, lest my comments create any alarm, that there are stringent requirements in the existing act that, in circumstances where communications from third parties are intercepted—which obviously will occur when someone is the subject of investigation—there is a specific obligation for law enforcement agencies to immediately destroy information that is irrelevant to the criminal activity being investigated. The purpose of the reporting and inspection requirements that are in place is to ensure that has occurred. So there are still safeguards in place.

The final issue which I wanted to comment on was coordination between these law enforcement agencies. I note that the Telecommunications Interception Policy Review expressed some concerns regarding the appropriate resourcing of the statutory office of agency coordinator under section 7A of the Telecommunications Act 1997. I note the primary functions of that agency are to assist primarily in respect of the execution of warrants. Clearly, it is something that the government needs to consider—although, again, in respect of this legislation, there are additional means for cooperation between agencies and the ability for one agency to engage the services of another to undertake the interception on their behalf. It should be stated and recognised in respect of that situation that, before such a request can be made, the agency requesting the other to conduct the interception on its behalf must itself be a certified agency as one which otherwise—if they had the resources available—could have itself undertaken the interception. The exchange of information between agencies in the context of existing powers in the act for the directors of these agencies, where appropriate, to communicate information that they have received to another responsible law enforcement agency, highlights the fact that there will be very sensitive information communicated between agencies. Again, I think it is reasonable to say that the Australian public would expect that, where information regarding a serious offence or potential criminal activity was received from one organisation, it would be appropriate to refer it to the appropriate agency, whether it be in another state or at a federal level. That in itself raises the question of whether these separate state based scrutiny provisions by an ombudsman or other agency—where relevant—are effective in the context of this overall transfer of information. I think what the government and the committee need to have a careful look at is whether there needs to be greater cooperation at that level.

In summary, this bill is necessary, but in the context of enhancing law enforcement powers we have to balance at the same time appropriate civil rights and privacy protections. In that context I move:

With the goodwill that the government has shown with respect to liaising on this issue, we should be able to come up with appropriate terms of reference. (Time expired)

Mr DEPUTY SPEAKER (Mr Nehl)—Is the amendment seconded?

Mr Bevis —I second the amendment and reserve my right to speak.