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Thursday, 30 October 2003
Page: 17290


Senator GREIG (1:35 PM) —In speaking on the Telecommunications Interception and Other Legislation Amendment Bill 2003, let me begin by saying the we Democrats have, on numerous occasions, expressed our concerns regarding the extensive use of telecommunications interception by Australian law enforcement and anticorruption agencies. We accept that telecommunications interception is a powerful investigative tool which frequently provides vital evidence leading to criminal convictions, but the value of this tool to our criminal justice system should not cloud the reality that interception represents a most serious infringement of the privacy of Australians and should only be used in exceptional circumstances, where there is clear evidence to suggest a threat to national security or of the commission of a serious criminal offence.

There is alarming evidence which suggests that Australian law enforcement and intelligence agencies have a tendency to use this power excessively compared to other countries. As the Bills Digest noted, the latest annual report on the Telecommunications (Interception) Act indicates that 2,514 interception warrants were issued to law enforcement agencies during 2001-02. This amounts to a 17 per cent increase over the previous year and a tenfold increase in the past decade. What is particularly disturbing about this figure is that it is almost twice the total number of interception warrants issued in the United States over the same period. This follows the same pattern as the previous year, in which Australia issued 20 times as many interception warrants as the US on a per capita basis.

It is also important to remember that, for every interception warrant issued, many hundreds—and sometimes thousands—of telephone calls can be intercepted. This is clearly illustrated in the case of the soon to be replaced Western Australian Anti-Corruption Commission which, in the second half of 2002, relied on 45 telecommunications interception warrants to intercept a total of 61,599 phone calls. As the Sunday Tasmanian observed on 23 June this year:

The warrants apply to hundreds of thousands of individual phone calls and eavesdropping on thousands of people.

Of course those figures are limited to interceptions for which warrants are required—in other words, interceptions undertaken by criminal investigation and anticorruption agencies in the course of investigating criminal offences and corruption. They do not include the unknown number of interceptions undertaken by Australia's intelligence agencies for national security reasons. It is clear, then, not only that the power to intercept telecommunications is extremely intrusive but also that its use is particularly widespread in Australia. For these reasons, we Democrats take a very cautious approach to any attempts by the government to increase the scope or availability of this power.

The bill before us seeks to extend this power to a new anticorruption body in Western Australia and to add sexual servitude offences as offences in relation to which an interception warrant may be sought. Firstly, the bill will vest a range of powers in the proposed Western Australian Corruption and Crime Commission. The commission is intended to replace the existing Western Australian Anti-Corruption Commission, which was established in 1996 to investigate public sector corruption.

The ACC has been the subject of widespread criticism. In particular, it has been argued that it lacked sufficient powers to achieve what it was established to do. The new Corruption and Crime Commission, the CCC, will operate in effect as a standing royal commission with wide-ranging powers, including the power to summon witnesses and compel them to give information, the power to enter and search premises, the power to carry out covert operations, the power to use assumed identities and the power to intercept telecommunications. It is also proposed to establish a parliamentary inspector to audit the operations of the commission and conduct investigations into allegations of misconduct by officers of the commission.

The bill before us will amend a number of pieces of Commonwealth legislation to ensure that the commission has the powers it requires to fulfil its functions. Specifically, the bill will amend the Crimes Act to enable the commission to use assumed identities, and the Financial Transaction Reports Act to enable the commission to access financial transaction reports from AUSTRAC. Finally, it will amend the Telecommunications (Interception) Act to enable the commission and the parliamentary inspector to receive intercepted information and to enable the commission to apply to execute its own interception warrants.

The Democrats welcome very much the establishment of the CCC by the Western Australian government. We believe that it has the potential to play an important role in preventing corruption and ensuring accountability within the public sector in my home state. However, we do not support the provisions in this bill relating to the Corruption and Crime Commission. This is because we think it is important for the commission to be formally established by the Western Australian parliament and its powers and functions enshrined in legislation before it is invested with extensive powers such as telecommunications interception and the use of assumed identities.

Although the Western Australian parliament has passed interim legislation to facilitate the transition from the ACC to the CCC, the substantive legislation has not yet been passed. It is currently the subject of an inquiry by a parliamentary committee. To accommodate this fact, the provisions in this bill relating to the CCC will not commence until a day fixed by proclamation and will automatically be repealed if the commission is not established within 12 months of the bill receiving royal assent. However, this provision does not address the possibility that the powers and functions of the commission could be significantly altered during the passage of the relevant legislation through the WA parliament.

This is the crux of the Democrats' concerns. We believe it is wrong to confer substantial and intrusive powers on an organisation before its functions have been formally decided. Any attempt to do so creates a level of uncertainty which is unacceptable when we are dealing with very intrusive powers such as telecommunications interception. For example, the bill provides that the CCC will be able to use intercepted information for the purposes of:

(i) an investigation under the Corruption and Crime Commission Act into whether misconduct (within the meaning of that Act) has or may have occurred, is or may be occurring, is or may be about to occur, or is likely to occur ...

Given that there is no Corruption and Crime Commission act yet—only the Corruption and Crime Commission Bill, which is subject to possible amendment—it is unclear exactly how misconduct will ultimately be defined. In other words, in deciding whether to confer these powers on the commission, this parliament cannot be certain of the ways in which intercepted information will ultimately be used by the commission.

Similarly, the commission will be able to receive intercepted information in relation to `the performance of its functions', yet these functions have not themselves been formally determined by the Western Australian parliament and there is every possibility that they could be altered during debate on the relevant legislation. We Democrats believe that passing the bill before us will effectively pre-empt the processes of the WA parliament, which has not yet had the opportunity to make a final decision on the appropriate powers and functions of the CCC.

We also note that the Bills Digest raises a concern regarding the proposed amendment to the definition of `permitted purpose'. In particular, it argues that the concept of misconduct that `has or may have occurred, is or may be occurring, is or may be about to occur, or is likely to occur' is a much broader concept than `alleged misconduct', which is the phrase used in relation to various other agencies. The Democrats agree, and we raised this concern with the government. The government's response was that the wording of the proposed amendment was based on the wording of the Corruption and Crime Commission Bill and that it was important to ensure consistency between the two pieces of legislation. According to the government, this will help to avoid any confusion that would arise if the commission were able to use intercepted information in relation to some but not all of its functions.

The Democrats would certainly find this argument persuasive if the Corruption and Crime Commission Bill had been passed but, as it has not been passed, the government's argument merely highlights our concerns regarding the uncertainty surrounding the commission's functions. The government is striving to ensure consistency between the terms of this bill and the terms of the Corruption and Crime Commission Bill, yet it has no guarantee that the terms of the latter bill will remain unchanged prior to its enactment. For these reasons, the Democrats oppose those provisions relating to the Corruption and Crime Commission.

We do, however, very much welcome the addition of sex trafficking as an offence in relation to which an interception warrant may be sought. The issue of trafficking women for sexual servitude has long been a concern of ours, and we have consistently called on the Australian government to increase its efforts to put an end to this inhuman trade. Regrettably, it did take some time for the government to make any significant progress on this front, but I do take the opportunity to again acknowledge and commend the government on its recent announcement that it has allocated more than $20 million over four years to combat the sex trafficking industry in Australia.

When Ms Puangthong Simaplee died in Villawood detention centre in September 2001, Australians were forced to sit up and take notice. Along with many Australians, I was appalled by the details which came to light about the thriving trade in human suffering happening right under our noses and the noses of the authorities. I repeatedly questioned the Minister for Justice and Customs in question time as to what the government was doing to address that situation. The Democrats also called for the establishment of a trafficking task force and a thorough inquiry into the nature and extent of trafficking in Australia. We finally succeeded in getting such an inquiry up through the parliamentary Joint Statutory Committee on the Australian Crime Commission, and I am pleased that that is now progressing and well under way.

The addition of sex trafficking as an offence in relation to which interception warrants can be issued is another important development that I hope will help to bring to justice those who engage in this insidious trade. I believe it will assist in focusing the attention of law enforcement agencies onto the perpetrators of this crime, rather than its victims. In summary, we Democrats welcome this legislative initiative, together with the recent injection of funds by the government. They are positive indications that the government might finally be getting serious about cracking down on the incidence of trafficking and sexual servitude in this country.