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Thursday, 16 February 2006
Page: 7


Mr RUDDOCK (Attorney-General) (9:24 AM) —I move:

That this bill be now read a second time.

This bill amends the Telecommunications (Interception) Act 1979 to implement recommendations of the report of the review of the regulation of access to communications, which was presented to the parliament on 14 September last year.

The review examined the issue of how best to regulate access to communications in the ever-changing world of telecommunications technology.

The Blunn report concluded that the interception regime is an extremely effective and necessary investigative tool that has proven remarkably robust. However, Mr Blunn also concluded that the regime requires amendment to maintain an appropriate balance between privacy protections and meeting the needs of security and law enforcement agencies.

The bill is the first step in implementing Mr Blunn’s recommendation that a comprehensive legislative regime dealing with access to telecommunications be established. Mr Blunn recommended that the overarching legislative framework address access to communications for law enforcement and security purposes, while preserving the privacy principles underpinning the current interception regime.

This overarching legislation, to be called the Telecommunications (Interception and Access) Act, will continue to govern the interception of telecommunications in Australia, but will also establish a warrant regime for enforcement agencies to access stored communications held by a telecommunications carrier.

The stored communications amendments create a general prohibition on access to stored communications held by a telecommunications carrier, subject to certain limitations.

The primary exception is for access by enforcement agencies subject to a stored communications warrant. A stored communications warrant will be available to an enforcement agency that is investigating an offence punishable by a maximum period of imprisonment of at least three years, or a pecuniary penalty of at least 180 penalty points.

The stored communications amendments will be strictly available to regulate the use, communication and recording of information obtained by accessing stored communications consistent with the way the use and communication of intercepted communications are currently regulated.

Information obtained by accessing stored communications will only be used or communicated for a purpose in connection with the investigation of an offence that is punishable by a maximum period of imprisonment of one year, or a pecuniary penalty of at least 60 penalty units.

The stored communications warrant regime will only apply to access to stored communications through a telecommunications carrier.

Access to communications through end user equipment will continue to be possible through other means of lawful access to property, such as search warrants or notice to produce.

The bill also implements a number of other recommendations proposed by Mr Blunn which are necessary to meet the needs of security and law enforcement agencies to combat the increasing use of emerging technologies by persons involved in the commission of serious criminal activity.

The bill contains amendments to enable interception agencies to obtain an interception warrant in respect of the communications of an associate of a person of interest.

This amendment will assist interception agencies to counter measures adopted by persons of interest to evade telecommunications interception, such as adopting multiple telecommunications services. The ability, as a last resort, to intercept the communications of an associate of a person of interest will ensure that the utility of interception is not undermined by evasive techniques adopted by suspects.

Interception warrants are only available for investigations of serious offences punishable by a maximum period of at least seven years, and will only be available where the issuing authority is satisfied that:

  • there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the telecommunications service, and
  • information that would be obtained by interception would be likely to assist in connection with the investigation by the agency of the seven-year offence in which the suspect is involved.

The bill will insert an additional requirement that a warrant authorising the interception of the communications of an associate of the person of interest may only be given where the issuing authority is satisfied that the agency has exhausted all other practicable methods of identifying the telecommunications services used, or likely to be used, by the suspect.

The issuing authority must also have regard to the following additional factors:

  • how much the privacy of any person would be likely to be interfered with by the interception,
  • the gravity or seriousness of the offences being investigated,
  • how much the intercepted information would be likely to assist with the investigation by the agency of the offence,
  • to what extent alternative methods of investigating the offence have been used by, or are available to, the agency,
  • how much the use of such methods would be likely to assist in the investigation by the agency of the offence, and
  • how much the use of such methods would be likely to prejudice the investigation by the agency of the offence.

The bill also amends the interception regime to permit equipment based interception. This measure will likewise assist in countering evasive techniques employed by the targets of telecommunications interception.

Equipment based interception will enable the interception of communications through a single piece of hardware, such as a mobile telephone handset.

Interception on this basis will be subject to the same high threshold I listed earlier, including only being available in connection with the investigation of the most serious offences.

In addition, the use of interception powers by security and law enforcement agencies continues to be subject to strict reporting, disclosure and destruction provisions of the act.

Agency compliance with these accountability mechanisms is monitored by the Inspector-General of Intelligence and Security in the case of the Australian Security Intelligence Organisation and the ombudsman in relation to law enforcement agencies.

I note that critics of Australia’s interception regime have again advanced old arguments that Australian agencies intercept communications at many times the rate of United States agencies and others.

As I have pointed out on a number of previous occasions, it is simply not true to complain that Australians are intercepted more than Americans. Direct comparisons between Australian and US statistics are misleading because legislative controls on interception differ widely between jurisdictions.

Statistics published in the United States do not include interceptions considered by the investigators to be too sensitive to report. Investigators in Australian law enforcement agencies do not have this discretion and therefore all interceptions must be reported.

United States law allows one warrant to authorise the interception of services used by many people, for instance where it becomes possible to identify criminal associates of the original suspect.

This results in fewer statistical returns than under Australian law, which allows a warrant to authorise the interception of a single telecommunications service or the services of one named person only.

Comparisons of the type made both recently and in the past are therefore misleading and unfairly impugn our law enforcement agencies. The use of interception is subject to strict controls and it is a tool to be employed only in the investigation of the most serious offences.

The bill also implements recommendations of the Blunn report, which propose the removal of the distinction between class 1 and class 2 offences and the removal of the telecommunications interception remote authority connection (TIRAC) function from the act. These amendments are designed to simplify complex areas of the interception regime and enhance the privacy underpinnings and real-time accountability mechanisms of the interception act.

The bill removes the current distinction between class 1 and class 2 offences, and redefines the group of offences for which an interception warrant may be sought as ‘serious offences’.

The amendments will also require the issuing of all interception warrants to have regard to privacy considerations. Currently the issuing judge or AAT member need only consider the privacy implications of issuing a warrant in respect of applications for the investigation of class 2 offences.

 In his report, Mr Blunn also recommended the removal of the telecommunications interception remote authority connection (TIRAC) function from the Australian Federal Police (AFP). TIRAC is a historical electronic accountability mechanism which requires the AFP to authorise the warrants obtained by other interception agencies before they take effect.

TIRAC’s utility has been exhausted by technological developments, and the bill replaces the current requirements for AFP to facilitate warrants by a requirement for my department to scrutinise warrants immediately upon issue and maintain a register of warrants.

The act will continue to require all agencies to maintain comprehensive records as part of the interception regime which are subject to regular compliance inspections by the Commonwealth Ombudsman or equivalent state oversight body.

I note that Mr Blunn made a number of other recommendations in relation to the interception regime. All the remaining recommendations remain the subject of consideration, and indeed are the subject of current consultations with affected agencies and departments.

The bill also amends other aspects of the act to ensure the ongoing effective operation of the interception regime. These amendments include a clarification to the act to ensure that employees of a carrier exercise authority under a telecommunications interception warrant when assisting law enforcement agencies in the execution of interception in response to judicial comment.

Further, the bill reinforces the existing privacy protections in the interception act by removing an outdated exception to the definition of interception.

The government is continuing to consider the remaining recommendations outlined in the Blunn report.

This bill demonstrates the government’s commitment to ensuring appropriate access to communications for the purposes of combating serious crimes and threats to national security while preserving comprehensive safeguards on this important tool.

I commend the bill to the House and I table the explanatory memorandum.

Debate (on motion by Ms Roxon) adjourned.