Mr TANNER (4:10 PM) —I rise to speak on the Communications Legislation Amendment Bill (No. 1) 2002. It contains five schedules, most of which enhance the operations of the Australian Communications Authority Act 1997, the Radiocommunications Act 1992, the Telecommunications Act 1997 and the Telecommunications (Consumer Protection and Service Standards) Act 1999. The main provisions of the bill—which has taken quite a long time to eventually get to the stage of being debated in the chamber—are noncontroversial and are technical enhancements of existing legislation. Four of the five provisions have Labor's full support. These are outlined in schedules 1, 3, 4, 5 and 6.

Schedule 1 of the bill enhances the Australian Communications Authority's ability to make written determinations under the Australian Communications Authority Act 1997. This is a technical amendment, which Labor fully supports. Schedule 3 enables Commonwealth, state and territory law enforcement organisations and anticorruption bodies to use licenced radiocommunications devices for covert surveillance to gather evidence in serious criminal and anticorruption investigations. The proposed amendments will allow the ACA, by disallowable instrument, to exempt certain law enforcement and anticorruption bodies from the operation of the Radiocommunications Act dealing with unlicenced transmissions, equipment standards and interference emissions. This will enable specific bodies to lawfully operate covert surveillance devices for the specified purposed of intercepting serious crime or corruption. The provisions also expand the objects clause of the Radiocommunications Act to ensure adequate radio frequency spectrum is set aside for national security, law enforcement and emergency service use for or by other public and community services.

Schedule 4 of the legislation before the House today abolishes the specially constituted Australian Communications Authority, SCACA. The SCACA has not served its intended purpose of considering carrier applications for facility installation permits. Carriers have used other means to advance these projects and the SCACA has not considered a single application in the four years in which it has been in operation. The proposal to abolish the SCACA contained in this schedule has Labor's full support, also. Schedule 4 of the bill relates to the facility installation permits provisions of the Telecommunications Act, which relates to the government's regulation of mobile phone towers. While we support this minor housekeeping amendment, Labor does remain seriously concerned about the government's overall approach to the regulation of mobile phone towers. Community concern about the installation and placement of mobile phone towers remains high, particularly on questions associated with location and proximity to schools, child-care centres and residential places.

Only this week we have had media reports of fierce residential protests against the construction of a mobile phone tower in Oatley Park in New South Wales. The facility is a low impact facility and, therefore, the communications company involved has been able to begin construction of the tower without any requirement for the approval of the local Hurstville Council or, indeed, local residents. The council and residents have expressed serious concern that the tower affects the amenity of the park in which it is located and is placed too close to a local school. Protesters have been chaining themselves to the work site and have been forceably removed by police, who are, of course, only doing their job, upholding the Howard government's telecommunications laws. Labor remains seriously concerned about the impact of these laws.

While it is true that the telecommunications industry has recently developed an industry code with respect to the deployment of radio telecommunications infrastructure, it remains to be seen how this code will operate in practice. We hope the measure for increased community consultation within the code will prevent the type of situations that we are witnessing at Oatley Park. If not, Labor believes that we must seriously consider strengthening the regulation of mobile phone towers—and we will certainly be considering restrictions against mobile phone towers being placed too close to locations such as schools, as has been recommended by the authoritative UK Stewart group report into these issues.

We need to get the balance right in our country between the importance of national telecommunications facilities and the desire of local communities to ensure that their rights are not trampled upon. Planning processes need to respect the environmental considerations of local communities, and we need to ensure that facilities are not located too close to sensitive places such as schools and child-care centres. Equally, local communities should ensure that their opposition to particular towers is reasonably based and that there is an acknowledgment that the entire community benefits in a whole range of ways from having mobile phones. There is an important balance to be struck, and there is legitimate concern in our community that the Howard government has failed to get that balance right. Labor are carefully considering this issue, and we will not hesitate to take new policy steps to ensure that these community concerns are properly dealt with if the new self-regulatory code fails to assuage the legitimate concern in the community about the location of mobile phone towers.

Although there is no substantive scientific evidence to demonstrate that there is a significant health threat from mobile phone towers, concerns of people in the community about the possibility that they may ultimately constitute such a threat are entirely legitimate, and it is wise to be cautious. We need mobile phone towers and we will have mobile phone towers; nonetheless, it is important to restrict their location to areas where they are some distance apart from the most sensitive citizens in our community, particularly children.

Schedule 5 of the legislation makes minor amendments to the Telecommunications (Consumer Protection Service Standards) Act 1999 dealing with the National Relay Service—which involves the provision of standard telephone services for deaf and hearing-impaired people—customer service guarantee standards and the Telecommunications Industry Ombudsman. The National Relay Service amendments improve the government's ability to effectively collect NRS levy debts from carriers. The CSG standard amendments ensure that revocations or variations of customer service guarantee standards are disallowable instruments. The Telecommunications Industry Ombudsman amendments ensure that carriers cannot on-charge consumers for TIO complaint handling fees and gives the TIO explicit powers to investigate complaints about charges or fees not directly related to telecommunications carriage services, such as early contract termination fees for mobile phone services. These are again worthy and sensible amendments, and they are supported by Labor.

Four of the five themes that we are dealing with in this legislation involve sensible and mostly minor reforms that will improve the operation of the various pieces of legislation that are amended by this bill before the House. Labor's key concern with the bill centres on schedule 2, which seeks to amend the Freedom of Information Act 1982 to exempt four agencies from the freedom of information requests under that act in relation to certain documents containing `offensive Internet content'. Labor has serious concerns with respect to this section of the bill and will be seeking the support of the minor parties and the Independents in the Senate to have the bill amended accordingly.

Schedule 2 affords four agencies—the Australian Broadcasting Authority, the Office of Film and Literature Classification, the Classification Board and the Classification Review Board—a blanket exemption from FOI requests for documents that contain or facilitate access to `offensive Internet content'. Facilitating access could mean setting out the name of an Internet site, an Internet protocol address, a universal resource locater, a password or the name of a newsgroup. `Offensive Internet content' is material that has been, or is likely to be, refused classification or classified X or R, is hosted in Australia and is not subject to a restricted access system approved by the ABA.

The role of the agencies concerned in censoring the Internet content stems from the Broadcasting Services Amendment (Online Services) Act 1999. In essence, the Classification Board classifies Internet content and the ABA enforces the classification—for example, by issuing a take-down notice. Labor opposed this legislation on the basis that the regime it established would be ineffective and unworkable. We argued strongly for an alternative regime centred on industry codes of conduct, end-user education and filtering software to ensure that our children are protected from the threat of access to Internet porn.

The effect of schedule 2 of this bill would be to prevent any public scrutiny, through the Freedom of Information Act, of the various agencies' roles in censoring the Internet; in other words, the decisions made by the agencies with respect to censorship of particular Internet sites would no longer be subject to the Freedom of Information Act as virtually all government or decisions by government agencies are currently subject.

If the schedule were enacted, there would be no way to access the material on which an agency based a censorship decision in order to challenge the lawfulness or reasonableness of that decision. It would cover up and would not fix the flaws in the government's online content regime—for example, it would do nothing to prevent the sites hosted in Australia from moving offshore and continuing to use the `au' domain name, but it could prevent people from finding out whether the government was aware that this had happened. Schedule 2 is plainly a response to an FOI request made of the ABA by an organisation called Electronic Frontiers Australia, which is concerned about the lack of transparency in online classification decisions.

In June, the Administrative Appeals Tribunal upheld the ABA's decision not to provide the documents sought, on the grounds that disclosure could reasonably be expected to `have a substantial adverse impact on the proper and efficient conduct of the operations of the agency', which is within the meaning of section 40(i)(d) of the FOI Act, and that this outweighed the public interest in disclosing information. Regardless of what one thinks about this particular decision, the independent review tribunal has made its decision on the merits of the application that it had before it. The most important aspect of the case was that the tribunal reached its decision after balancing the potential of disclosure to prejudice the operation of the ABA against the public interest in disclosure.

Labor believes that it is more appropriate to require these agencies and the tribunal to undertake this balancing exercise rather than to grant a blanket exemption from the operation of the FOI Act. It is not unreasonable to require these agencies to justify their decision to provide information about their Internet censorship decisions. There is no evidence whatsoever that people are using FOI requests to the OFLC or the ABA as a means of procuring the addresses of offensive or illegal Internet sites for public dissemination or misuse, which is the government's ostensible reason for placing these amendments in this piece of legislation.

Senate estimates questioning has revealed that, since the commencement of the online content regime, the ABA and the OFLC have each received just one freedom of information request relating to their Internet censorship decisions. To put that in perspective, the online content regime has been operating since the 1999-2000 financial year. From the regime's commencement to the end of the 2001-02 financial year, in relation to Internet content the OFLC issued 51 R18+ classifications, 42 X18+ classifications and 170 refused classification decisions—a total of 263 relevant decisions. That is 263 decisions over three years by the OFLC and just one FOI request. In the same period, the ABA issued 251 take-down notices for Internet content hosted in Australia and made 774 referrals to makers of filters for overseas-hosted content—1,075 relevant decisions in total. That is 1,075 relevant decisions by the ABA over three years and just one FOI request. Both of these requests were fully resolved without the release of a single URL. If the government has evidence that the FOI Act is being abused, let it produce it, because it is certainly not apparent from the data that I have just indicated that we are dealing with any kind of problem here. Over a period of three years for each of the two agencies most affected, we have had only one FOI request in each case.

The government has made no attempt to justify the retrospective operation of this schedule. The explanatory memorandum states that the bill has been backdated to 27 June 2002—quite some time ago now—`because of the desirability of having these amendments commence at the earliest possible date', which simply begs the question of why retrospectivity is required. Schedule 2 of this bill is nothing more than an attempt by the Howard government to cover up the failure of its Internet content censorship regime. It will protect nobody. It will simply generate more government secrecy, reduce the extent to which decision making by government agencies is exposed to public scrutiny and reduce the extent to which members of the general public, journalists and members of the parliament can use the Freedom of Information Act to extract information about government decisions and to seek justification for those decisions.

The government has made no attempt to justify by evidence or argument that schedule 2 is necessary. Labor believes that it is not justified. I will be moving a second reading amendment condemning the government for its failed Internet content regulation regime and the attack on the freedom of information legislation that the provisions in schedule 2 contain. In the Senate, Labor will be seeking the support of the minor parties and Independents to remove this part of the bill. Labor will not permit the government to fundamentally undermine the freedom of information regime in this country, which is so fundamental to ensuring that we have genuine public scrutiny and accountability with respect to government agencies.

I might add that I am involved personally in a long-running court case that has most recently been in the High Court. It is about freedom of information and is against the Howard government. It relates to its refusal to release a variety of documents associated with the waterfront dispute which commenced in 1997. In that instance, the government has used a substantial amount of taxpayers' money, in the vicinity of $1.3 million, to create a range of consultants' reports which form the basis of its secret strategy to get 2,000 workers sacked from their jobs, to train a replacement work force overseas—in Dubai, as it turned out—and to assist Chris Corrigan and Patricks to use dodgy corporate structuring approaches to separate the employment of the workers from the company for whom they were employed. The government has consistently refused to release these documents and has used every procedural and legal trick in the book to try to frustrate my attempt to get access to them. The documents were created by taxpayers' money and funded by taxpayers. They are clearly related to decisions made by this government and involve matters of great public interest.

This legislation before the House today is of a similar nature to the government's refusal to allow the Freedom of Information Act to operate in the matter on which I am involved in legal action. This again illustrates this government's resistance to proper public scrutiny, to genuine accountability for its actions and to ensuring that the information on which government decisions are made and the facts about how those decisions are made are genuinely open to public scrutiny, whether you are a citizen, a member of parliament, an interest group or a journalist. That is ultimately what our objection to this bill is based on. We do not wish the freedom of information legislation and the regime governing the freedom of information in this country to be further undermined by this government.

It may seem like a fairly small area of total government decision making. The ABA and the Office of Film and Literature Classification are hardly the larger sections of the vast array of government agencies that we have in this country; nonetheless, to exempt them from the application of the Freedom of Information Act on such a spurious basis sets an appalling precedent. It sets a precedent for the gradual unravelling of the Freedom of Information Act. There is absolutely no justification for it. If the government is able, at this late stage in the debate, to produce evidence that there is a significant problem and that people are misusing the FOI legislation in order to obtain information about prohibited Internet sites for a variety of inappropriate uses, which has been implied by the government, there are alternative ways of dealing with such a problem. There is no need to take a substantial chunk out of the Freedom of Information Act and to create such a terrible precedent which will undoubtedly be built upon in future years for a range of other spurious excuses by this government should it remain in office. In concluding, I move:

That all words after `That' be omitted with a view to substituting the following words:

`whilst not denying the Bill a second reading, the House:

(1) expresses its strong objection to the fact that the Bill seriously undermines the Freedom of Information Act by exempting certain documents created with respect to decisions regarding offensive Internet content by the Australian Broadcasting Authority, the Office of Film and Literature Classification, the Classification Board and the Classification Review Board, from the scope of the FOI Act; and

(2) notes that this removal of FOI scrutiny will seriously undermine the level of transparency and accountability of the decision-making processes of these agencies and that the Government is seeking to disguise the fact that its attempts to censor the Internet have proved ineffectual'.

The DEPUTY SPEAKER (Mr Jenkins)—Is the amendment seconded?

Mr Sidebottom —I second the motion and reserve my right to speak.

Debate (on motion by Mr Cameron Thompson) adjourned.