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Wednesday, 22 August 2012
Page: 6047


Senator LUDLAM (Western Australia) (11:30): by leave—I move Greens amendments (1) to (10) on sheet 7232:

(1) Schedule 2, item 41, page 32 (line 3), at the end of subsection 180A(3), add "in relation to an offence that is punishable by imprisonment for at least 3 years".

(2) Schedule 2, item 41, page 32 (line 13), after "country", insert "in relation to an offence that is punishable by imprisonment for at least 3 years".

(3) Schedule 2, item 41, page 34 (line 22), after "country", insert "in relation to an offence that is punishable by imprisonment for at least 3 years".

(4) Schedule 2, item 41, page 35 (lines 1 to 19), omit subsection 180D(2), substitute:

(2) The authorised officer must not authorise the disclosure of the information or documents to the Organisation unless he or she is satisfied that the disclosure is appropriate in all the circumstances and is reasonably necessary for the performance by the Organisation of its functions.

( 3 ) The authorised officer must not authorise the disclosure of the information or documents to an enforcement agency unless he or she is satisfied that the disclosure is appropriate in all the circumstances and is reasonably necessary:

   (a ) for the enforcement of the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years; or

   (b ) for the enforcement of a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

       (i ) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

       (ii ) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units; or

   (c ) for the protection of the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

       (i ) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

       (ii ) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.

( 4 ) The authorised officer must not authorise the use of the information or documents by the Australian Federal Police unless he or she is satisfied that the disclosure is appropriate in all the circumstances and is reasonably necessary:

   (a ) for the enforcement of the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years; or

   (b ) for the enforcement of a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

       (i ) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

       (ii ) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units; or

   (c ) for the protection of the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

       (i ) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

       (ii ) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.

(5) Schedule 2, items 54, 55 and 56, page 39 (lines 5 to 19), omit the items, substitute:

54 Paragraph 313(3)(c)

Repeal the paragraph, substitute:

   (c) enforcing the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years;

(ca) enforcing a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

      (i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

      (ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units;

(cb) assisting the enforcement of the criminal laws in force in a foreign country in relation to an offence that is punishable by imprisonment for at least 3 years;

54A At the end of paragraph 313(3)(d)

Add "in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

      (i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

      (ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units;".

54B At the end of paragraph 313(3)(e)

Add "in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

      (i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

      (ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.".

55 Paragraph 313(4)(c)

Repeal the paragraph, substitute:

   (c) enforcing the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years;

(ca) enforcing a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

      (i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

      (ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units;

(cb) assisting the enforcement of the criminal laws in force in a foreign country in relation to an offence that is punishable by imprisonment for at least 3 years;

55A At the end of paragraph 313(4)(d)

Add "in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

      (i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

      (ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units;".

55B At the end of paragraph 313(4)(e)

Add "in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

      (i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

      (ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.".

56 Application of amendments made by this Part

(1) The amendments made by items 54, 54A and 54B of this Schedule apply to help given by a carrier or carriage service provider on or after the commencement of this item.

(2) The amendments made by items 55, 55A and 55B of this Schedule apply to help given by a carriage service intermediary on or after the commencement of this item.

(6) Schedule 4, page 42 (after line 8), after item 1, insert:

1A At the end of subsection 177(1)

Add "in relation to an offence that is punishable by imprisonment for at least 3 years".

1B Subsection 177(2)

Repeal the subsection, substitute:

Enforcement of a law imposing a pecuniary penalty

(2) Sections 276 and 277 of the Telecommunications Act 1997 do not prevent a disclosure by a person (the holder) of information or a document to an enforcement agency if the disclosure is reasonably necessary for the enforcement of a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

   (a) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

   (b) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.

Enforcement of a law for the protection of the public revenue

(2A) Sections 276 and 277 of the Telecommunications Act 1997 do not prevent a disclosure by a person (the holder) of information or a document to an enforcement agency if the disclosure is reasonably necessary for the enforcement of a law for the protection of the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

   (a) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

   (b) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.

1C At the end of subsection 178(3)

Add "in relation to an offence that is punishable by imprisonment for at least 3 years".

1D Subsection 179(3)

Repeal the subsection, substitute:

(3) The authorised officer must not make the authorisation unless he or she is satisfied that the disclosure is reasonably necessary for:

   (a) the enforcement of a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

      (i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

      (ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units; or

   (b) for the protection of the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

      (i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

      (ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.

(7) Schedule 4, item 3, page 43 (lines 7 to 17), omit subsection 181A(3), substitute:

(3) Paragraphs (1)(a) and (2)(a) do not apply to a disclosure of information or a document if the disclosure is for the purposes of the authorisation, revocation or notification concerned.

Note:   A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

(3A) Paragraphs (1)(a) and (2)(a) do not apply to a disclosure of information or a document if the disclosure is reasonably necessary:

   (a) to enable the Organisation to perform its functions; or

   (b) to enforce the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years; or

   (c) to enforce a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

       (i ) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

       (ii ) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units; or

   (d ) to protect the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

       (i ) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

       (ii ) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.

Note:   A defendant bears an evidential burden in relation to the matter in subsection (3A) (see subsection 13.3(3) of the Criminal Code).

(8) Schedule 4, item 3, page 44 (lines 3 to 13), omit subsection 181A(6), substitute:

(6) Paragraphs (4)(a) and (5)(a) do not apply to a use of information or a document if the use is for the purposes of the authorisation, revocation or notification concerned.

Note:   A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).

(7) Paragraphs (4)(a) and (5)(a) do not apply to a use of information or a document if the use is reasonably necessary:

   (a) to enable the Organisation to perform its functions; or

   (b) to enforce the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years; or

   (c) to enforce a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

       (i ) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

       (ii ) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units; or

   (d ) to protect the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

       (i ) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

       (ii ) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.

Note:   A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

(9) Schedule 4, item 3, page 45 (lines 3 to 13), omit subsection 181B(3), substitute:

(3) Paragraphs (1)(a) and (2)(a) do not apply to a disclosure of information or a document if the disclosure is for the purposes of the authorisation, revocation or notification concerned.

Note:   A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

(3A) Paragraphs (1)(a) and (2)(a) do not apply to a disclosure of information or a document if the disclosure is reasonably necessary:

   (a) to enable the Organisation to perform its functions; or

   (b) to enforce the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years; or

   (c) to enforce a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

       (i ) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

       (ii ) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units; or

   (d ) to protect the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

       (i ) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

       (ii ) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.

Note:   A defendant bears an evidential burden in relation to the matter in subsection (3A) (see subsection 13.3(3) of the Criminal Code).

(10) Schedule 4, item 3, page 46 (lines 1 to 10), omit subsection 181B(6), substitute:

(6) Paragraphs (4)(a) and (5)(a) do not apply to a use of information or a document if the use is for the purposes of the authorisation, revocation or notification concerned.

Note:   A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).

(7) Paragraphs (4)(a) and (5)(a) do not apply to a use of information or a document if the use is reasonably necessary:

   (a) to enforce the criminal law in relation to an offence that is punishable by imprisonment for at least 3 years; or

   (b) to enforce a law imposing a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:

       (i ) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

       (ii ) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units; or

   (c ) to protect the public revenue in relation to an offence that is punishable by imprisonment for at least 3 years or in relation to a contravention that would, if proved, render the person committing the contravention liable to:

       (i ) a pecuniary penalty, or a maximum pecuniary penalty, of at least 180 penalty units if the contravention is committed by an individual; or

       (ii ) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 900 penalty units.

Note:   A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

These amendments are about setting a standard or threshold for the privacy of Australians to be invaded. It is really an enough-is-enough amendment. This is the one I indicate in advance I will divide on, because I think this one is extremely important. If agencies want to authorise the disclosure of information or documents containing the access and disclosing the data of all Australians, there needs to be some limit, there needs to be a reason and a purpose for doing it. I suspect that, when the minister jumps up, he will say this has nothing to do with the European cybercrime convention, and I disagree.

Senators will know—because I have raised it in here before—the TIA annual report 2010-11 notes on page 63 that there are just under a quarter of a million requests for access to telecommunications data, or 'traffic data' as it is referred to in the convention, and that in fact there is no criminal threshold applied at all. So I put a question to the minister in my second reading contribution around whether the threshold was changing from seven to three. But the fact is there is no threshold at all for agencies in Australia currently to be hoovering up vast quantities of private data, not the contents of the communication—so not reading the email, not listening to the phone call but everything else in the cloud of metadata that surrounds our communications. Open season has been declared, and the law has not kept up.

This batch of amendments will limit that access, limit that disclosure and provide the same threshold for access to that material that should apply—and justifiably does apply—to agencies snooping on our phone calls. I do not think a case has been made or is supportable that it is appropriate that, on no accusation of any crime whatsoever and no penalty threshold, agencies should be able to know where you are at every moment of every day if you are carrying a phone around. That is the status quo. There are a quarter million of these requests. In the ACMA 2010 annual report there were 549,859 authorisations for access to existing information under the TIA, which is mentioned on page 78 of that document. Vast quantities of material are being requested.

I will confine my remarks specifically to the TIA Act, although I am interested to note the half-million requests for information that ACMA is reporting on. I do not know that it would be possible, but maybe the minister can help us clarify the degree of overlap between the requests under the TIA Act and those reported in the ACMA annual report. But I recognise we may not have the officers we need at the table. Minister, maybe at the outset you could indicate whether the government will or will not be supporting the need for some threshold to apply. If the government will not be supporting these amendments—I fear that my hopes are about to be crushed yet again—how can the minister justify that?