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Tuesday, 2 February 2010
Page: 15

Senator LUDLAM (1:33 PM) —by leave—I move Greens amendments (6) to (10) on sheet 6011 together:

(6)   Schedule 1, page 8 (after line 9), after item 20, insert:

20A Paragraph 79(1)(a)

After “restricted record”, insert “or a copy of a restricted record”.

20B Paragraph 79(1)(b)

After “record”, insert “or copy”.

20C Subsection 79(1)

After “record”, insert “or copy”.

(7)   Schedule 1, item 21, page 8 (lines 12 and 13), omit subsection 79(3), substitute:

       (3)   This section does not apply to a restricted record to which section 79A applies.

(8)   Schedule 1, item 22, page 8 (line 21), after “record”, insert “or a copy of the record”.

(9)   Schedule 1, item 22, page 8 (line 29), after “record”, insert “or copy”.

(10) Schedule 1, item 22, page 9 (line 6), after “authority”, insert “that is not an appropriate use of the network”.

This is our third and final group of amendments. They relate to an issue that was raised in many of the submissions to the inquiry. The majority report of the committee noted—and this was acknowledged in the contributions of coalition spokespeople on this issue—the requirements for the destruction of copies of intercepted communications as soon as practicable after it was determined that they were not likely to be required for network security purposes or disciplinary actions, so after they were no longer needed. Not while investigations are still afoot but once it has been determined by those agencies that that material is no longer needed, copies of that material should also be destroyed. That is a fairly common-sense principle. It goes to the standards in the act itself, which require an interception agency to ‘destroy a restricted record’. That is the phrase used. So an amendment is needed to ensure that this provision applies also to the intercepted communications enabled by the bill, which I would have thought was fairly straightforward.

The privacy commissioner suggested that all intercepted records of a communication, whether the original or a copy, obtained for the purpose of network protection should be destroyed when no longer needed for that purpose. This is very important because, unlike the case with paper materials, copies of intercepted electronic records are in many cases completely identical and indistinguishable from the original. In fact, there is no ability to even distinguish between the original and the copy. The purpose of these amendments is to clarify the fact that copies should not be treated any differently from originals. The ALRC contended that they saw no reason why copies of information obtained from a stored communications warrant should be destroyed but that copies of information obtained from an interception warrant should not. We propose to simply clarify that inconsistency. The Law Reform Commission also noted that the covert nature of interception and access to communications required the safeguard that this material be destroyed as soon as it is no longer required. I would be very interested to hear from both the minister and the opposition as to why this common-sense amendment would not be supported. We concur with the Privacy Commissioner and with the Law Reform Commission on this matter. I commend these amendments to the Senate.