Senator GREIG (4:00 PM) —The incorporated speech read as follows—

This is a truly scary Bill which has the potential to violate the privacy of thousands of Australians.

This Bill will allow ASIO and a range of law enforcement agencies to access the SMS, email and voicemail messages of individual Australians without the need for an interception warrant.

These proposals were originally introduced by the Government as part of its package of anti-terrorism legislation in 2002 and attracted strong criticism from many groups and individuals within the Australian community.

While the Government has made some improvements to the legislation since that time, the provisions relating to SMS, email and voicemail remain unacceptable.

I want to begin my remarks today by emphasising that the interception of private communications between individual Australians is an incredibly intrusive practice.

Individual Australians have the right to communicate privately with their friends, their families and their loved ones. Similarly, in a business context, Australian workers have the right to communicate privately with their employers, employees, colleagues and clients.

Human beings are continually developing new and innovative ways of communicating with each other and it is important that Australians have the freedom and the confidence to embrace these new technologies, without fear of Government surveillance.

The right to privacy imposes a vital limitation on Executive power. When that right is eroded, we are left with an Orwellian state with the power to control the lives of those it governs.

In the absence of a Bill of Rights, there is no constitutionally or legislatively enshrined right to privacy in Australia, however a number of important protections do exist. Not surprisingly, most of these are contained in the Federal Privacy Act. The Telecommunications (Interception) Act also contains an essential protection—it prohibits the interception, listening to, or recording of telecommunications between individuals.

Of course, the Act also sets out a number of circumstances in which this prohibition does not apply. In particular, it enables ASIO to intercept telecommunications in the interests of national security and it enables law enforcement agencies to intercept telecommunications for the purpose of investigating and prosecuting criminal offences. In each of these cases, an interception warrant is required before any interception is permitted.

Under this Bill, however, Australian intelligence and law enforcement agencies will, for the first time, be able to access certain forms of telecommunications—namely SMS, email and voicemail—without an interception warrant.

The Bills Digest on this Bill argues that:

“Parliament needs to consider whether access by ASIO or law enforcement authorities to stored communications (emails, voicemail and text messages) without the knowledge of the recipient or sender should be allowed without adhering to protocols for intercepting private communications of the type laid down in the Telecommunications (Interception) Act”.

It goes on to say:

“The fundamental issue, however, is what privacy regime should apply for emails, text messages and voicemail, as well as for similar forms of electronic communication that may be developed in the future. Should official access to private communications using new forms of electronic technology be allowed outside the type of protocols in the Telecommunications (Interception) Act simply because the communications have reached a point in their transmission where they are deemed by the Bill to be no longer passing over' a telecommunications system?”

The Democrats believe that the answer to this question is an emphatic “no”.

We see no reason why electronic communications, such as SMS, email and voicemail should be treated any differently from telephone calls, simply because they can be stored and accessed at a later time.

The use of SMS, email and voicemail as means of communication is increasing rapidly and the Australian community should be able to reap the benefits of this technology without fearing Government access to their private communications.

The Democrats believe these proposed changes will undermine the fundamental purpose and intent of the Telecommunications (Interception) Act and will enable unjustifiable infringements of personal privacy.

One of the fundamental points that needs to be made about interception warrants is that they provide some degree of accountability in the exercise of such an invasive powers. For example, law enforcement agencies must satisfy a judge or member of the AAT that the warrant is required for the investigation of a particular offence.

The Act limits the range of offences in relation to which a warrant may be issued and the Attorney-General is required to present an Annual Report to the Parliament on the number of warrants issued, the cost of implementing those warrants and their usefulness in terms of whether they yield information relevant to the prosecution of an offence.

Under the new provisions, law enforcement agencies will be able to access stored SMS, email and voicemail messages after their receipt without the need for an interception warrant. What this means in practical terms is, firstly, that there will be no scrutiny of the proposed use of these powers before they are exercised by law enforcement agencies. This is because it will not be necessary to satisfy a judicial officer that accessing private communications is necessary for the investigation or prosecution of an offence.

Secondly, law enforcement agencies will now be able to access private communications between individuals for the purpose of investigating even the most minor offences.

Thirdly, there will be no parliamentary or public scrutiny of the exercise of these powers because the Attorney-General will have no obligation to report to the Parliament on their use. What this means is that both the Parliament and the community will be kept in the dark about the extent to which law enforcement agencies are accessing private SMS, email and voicemail messages. This is totally unacceptable.

Even when there are strict reporting requirements in place—as with the existing interception powers—we are seeing a massive increase in spying by law enforcement agencies. The introduction of new powers without any associated reporting requirements, will only exacerbate this situation.

The recent tabled Annual Report on the Telecommunications (Interception) Act for 2002-2003 demonstrates that our law enforcement agencies are undertaking more interceptions than ever before. The report indicates that a total of 3058 warrants were issued to law enforcement agencies in the previous reporting year, representing an increase of 41 % over the past two years.

The extent of phone-tapping documented in the previous Annual Report, prompted a reporter for the Sunday Tasmanian to remark, on 29 June last year, that:

“Australians are fast becoming the most spied-on people in the Western world.... The 2514 court warrants for phone taps last financial year—almost double the number issued in the US—represent a tenfold increase in the past decade.”

The most important point to make about these figures is that they represent only the number of warrants issued, not the number of interceptions made pursuant to those warrants. What this means in practical terms is that the warrants actually authorise the interception of tens of thousands of individual phone calls.

While the Annual Report argues that “interception continues to be an extremely valuable investigative tool”, the figures reveal that many interceptions do not in fact result in conviction, prosecution or even arrest. Not only was there a decrease in the number of arrests per warrant, but also in the proportion of warrants which yielded information used in the prosecution of an offence.

What is clear is that hundreds of warrants have been issued, and thousands of interceptions undertaken, which have ultimately not had any forensic value. For example, more than 1500 of the warrants issued last year did not result in any arrest.

The report also highlights the enormous cost associated with interception warrants, with more than $25 million being spent in connection with the execution of warrants during the past year.

So the picture which the Annual Report paints is one in which Australian law enforcement agencies are undertaking more interceptions, spending more money on them, yet not necessarily yielding more information relevant to criminal offences.

It is against this backdrop that the Government is now seeking to give these law enforcement agencies unrestricted and unaccountable powers to access SMS, email and voicemail messages after they have been received. There will be no restriction on the types of investigations in which these communications can be accessed and no requirement to report to Parliament.

But the most fundamental point I want to make is that these powers are not only being given to law enforcement agencies they are also being given to ASIO, to be used in the performance of its national security functions.

Under the current telecommunications interception regime, ASIO exercises its interception powers in a virtual accountability vacuum. ASIO's entire accountability in this context is limited to scrutiny by the Attorney-General.

The disturbing situation that this creates is one in which the power to authorise the extensive bugging of private conversations between individual Australians rests with the same Minister who presided over the “Truth Overboard” scandal.

The Democrats believe there is a desperate need for greater accountability in relation to the exercise of telecommunications interception powers by ASIO. At present, the Australian community has no idea of the extent to which ASIO is exercising these powers. Given the massive violation of privacy associated with these powers, we firmly believe that some degree of accountability is vital to guard against their abuse.

In advocating this, I am not naively suggesting that ASIO should be treated in the same way as any other Government Department. Clearly, as an intelligence agency, ASIO can not achieve the same level of public accountability and transparency as we would hope other Government Departments would exhibit. But that is not to say that it should be free from any accountability in relation to its interception powers.

The Democrats firmly believe that ASIO should be required to provide to the Parliament basic information about its use of interception powers, for example, the number of warrants issued to it by the Attorney-General. We do not believe that this would impinge on ASIO's ability to promote and protect Australia's national security.

It is for these reasons that I will be moving amendments to this Bill to introduce annual reporting requirements in relation to ASIO's interception powers.

While the Democrats strongly oppose the provisions of this Bill which will facilitate access to stored SMS, email and voicemail communications without a warrant, we know that Labor supports them and that therefore they will soon be law. Given the controversial and very intrusive nature of these powers, the Democrats believe they should be subject to a three-year sunset clause.

We believe the Government should come back in three years and justify the continued operation of these powers and, as part of that justification, it should provide evidence on how the powers have been exercised over the intervening period.

I would like to close by making the observation that the vast majority of Australians are almost certain to object to their private SMS, email and voicemail communications being accessed by ASIO and law enforcement agencies, yet, unfortunately, the vast majority of Australians remain oblivious to this legislation.

This is partly because, in the Democrats' view, this legislation has not been subjected to appropriate community consultation. It is true that the Bill has been the subject of an Inquiry by the Senate Legal and Constitutional Legislation Committee, however the inquiry was conducted within an incredibly short time frame, which we are convinced prevented many concerned groups and individuals from participating in that process.

Everyone in this place will acknowledge that accessing private communications without the knowledge of the individuals involved is an incredibly intrusive practice. The Democrats believe that this practice is unjustifiable other than in the most exceptional circumstances.

Where the Government does engage in this practice, it must be clearly accountable to the Parliament. This Bill reduces accountability and radically extends the circumstances in which the Government can lawfully access private communications between individuals.

The Democrats do not support these moves and, while we will seek to address some of our more serious concerns by way of amendments during the Committee stage, we will ultimately be voting against this Bill.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.