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Monday, 13 March 2000
Page: 12623

Senator IAN CAMPBELL (Parliamentary Secretary to the Minister for Communications, Information Technology and the Arts) (4:01 PM) —I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows

The Telecommunications (Interception) Legislation Amendment Bill 2000 has its origins partly in the Telecommunications Interception Policy Review which was tabled in the Senate on 25 August 1999 and partly in response to rapid change in the telecommunications industry.

Senators would be aware that Australia's law enforcement agencies rely on telecommunications interception to investigate criminal activity involving drug trafficking and other serious offences.

The amendments to the Telecommunications (Interception) Act 1979 proposed in the Bill will build on and develop the existing legislative scheme to ensure that it continues to support law enforcement and security agencies in the face of developments in technology and the deregulation and globalisation of the telecommunications industry.

We must do this if we are to be effective in the fight against crime.

The Bill advances this objective with three groups of amendments. First, the Bill will enable the Inspector of the Police Integrity Commission of New South Wales to have access to intercepted material which is relevant to the performance of the functions of that office. The Inspector of the Police Integrity Commission is an independent statutory office set up under the Police Integrity Commission Act of New South Wales to monitor the operations of the Police Integrity Commission for compliance with the law and to deal with complaints of impropriety against the Commission. The Inspector is an integral part of the anti-corruption scheme set up under the NSW legislation but is technically a statutory entity separate from the Commission itself. Therefore, the Telecommunications (Interception) Act requires amendment to give the Inspector independent access to relevant intercepted information and enable it to use that information in the performance of its statutory functions.

A police force free of systemic corruption is crucial to effective law enforcement.

The Government confirms its support of the Government of New South Wales in eradicating police corruption by providing access to an investigative tool of proven value.

I can assure Senators that the proposed amendments are confined to allowing the Inspector access to intercepted information collected by other agencies and will not allow the Inspector to intercept telecommunications in its own right.

The second main objective is to provide for warrants against named persons.

As a result of rapid advances in technology—coupled with competition in the telecommunications market—customers may now choose from a variety of services and means of communication. For example, it is now a simple matter for a person to subscribe to multiple services by acquiring several pre-paid mobile telephone services which may be used in the one telephone handset, and swapped around and discarded at will. The Telecommunications (Interception) Act in its present form would require an agency wishing to intercept all of the telecommunications services used by a particular suspect to obtain a separate warrant for each service.

This is an unnecessary operational burden in circumstances where the same suspect and the one offence is involved and adds little in the way of protection of individual privacy.

The difficulties faced by an agency are compounded if it cannot identify at the time of applying for a warrant or several warrants all the services likely to be used by a suspect.

These changes have not escaped the notice of criminals, especially those involved in drug trafficking. Criminals are quick to take advantage of modern technology for the express purpose of concealing their activities.

The Telecommunications (Interception) Act is currently structured around the premise that a warrant relates to one, identified telecommunications service. This premise accurately reflected the telecommunications industry when the Act was first enacted over 20 years ago.

It no longer does so.

The legislation should enable connections, disconnections and reconnections—in rapid succession—of multiple services used by a particular suspect in connection with the same offence without the need to obtain fresh warrants each time.

To make it more difficult for criminals and terrorists to evade detection, the Bill will amend the Telecommunications (Interception) Act to provide for two new categories of warrant in addition to the existing type of warrant, making three categories in all.

The first category comprises telecommunications service warrants. These are the existing type of warrant directed at an identified service and which continue unchanged.

The second category comprises named person warrants. This is a new type of warrant which will enable an agency to intercept any service used or likely to be used by the suspect named in the warrant. The named person warrant will enable an agency—under the authority of the one warrant—to intercept different services as they become known to the agency, and to disconnect and reconnect them without having to apply for a fresh warrant each time.

It is not intended that this new, more flexible type of warrant diminish the safeguards which are embodied in the Telecommunications (Interception) Act. For this reason, the criteria for the issue of named person warrants and the associated accountability mechanisms will be more stringent.

The amendments will add an extra requirement that the judge or member of the Administrative Appeals Tribunal—before issuing a named person warrant—must first be satisfied that other methods of investigation, including a less intrusive telecommunications service warrant, have been considered and are either unavailable or ineffective in the circumstances.

There will be additional reporting requirements. After the expiry of a named person warrant, the agency concerned will be required to report to the Minister responsible for interception matters certain specified information, including a list of the services which were intercepted under the warrant and the reasons why it was ineffective to use a telecommunications service warrant.

The Bill will also enable the Attorney-General to issue named person warrants to ASIO for purposes connected with the performance of its statutory functions related to the collection of security intelligence and foreign intelligence. Like the corresponding warrants for law enforcement purposes, the criteria for issuing named person warrants to ASIO will be more stringent. Before issuing a named person warrant, the Attorney-General will have to be satisfied that relying on a telecommunications service warrant would be ineffective to obtain the intelligence sought.

ASIO will also be subject to additional reporting requirements in connection with named person warrants.

The third category of warrants proposed in the Bill comprise foreign communications warrants for the collection of foreign intelligence.

I have already mentioned that advances in technology and deregulation of the industry mean that the existing interception warrants directed at an identified service cannot operate effectively against a continually evolving telecommunications environment. The proposed named person warrants go much of the way in resolving the difficulties faced by law enforcement and national security agencies.

The proposed foreign communications warrant will enable the interception of particular communications which cannot be identified by reference to specific services or named individuals. This is a characteristic of the sophisticated digital technologies which are increasingly dominant in modern telecommunications systems.

The Bill limits the power to issue this category of warrants to interception for the purpose of collecting foreign intelligence. To reduce the possibility of inadvertently intercepting communications between Australians, these warrants may be issued only in relation to foreign communications.

Finally, the Bill makes a number of amendments which are consequential upon the amendments I have outlined above or which are minor amendments necessary to ensure the legislation operates effectively.

Consequential amendments to the Australian Security Intelligence Organisation Act 1979 are required to insert cross references to the new named person and foreign intelligence warrants.

The more significant of the minor amendments to the Telecommunications (Interception) Act will redefine the classes of police officers who may certify certain formal documents for the purposes of the Act. The amendments will ensure that only suitably senior officers perform the certification functions. This change has been made necessary by the restructuring of the Australian Federal Police and some State police services to reduce or eliminate ranks.

The amendments will also enable one agency to execute warrants on behalf of another and will remove an obsolete requirement for the Australian Federal Police to execute all interception warrants which also authorise entry onto premises. Agencies have executed their own standard interception warrants for some years now and the amendments will bring “interception plus entry” warrants into line with that policy. This amendment will not affect the Australian Federal Police's supervisory function which is implicit in the procedures set out in the Act.

Other minor amendments will enable the disclosure of intercepted information in subsequent proceedings after being lawfully disclosed in other proceedings and in proceedings reviewing a decision to grant bail.

In conclusion, I remind Senators of the importance of telecommunications interception to effective law enforcement and intelligence collection.

This Bill is designed to enhance the effectiveness of this powerful investigative tool in a fast changing telecommunications environment while still retaining an appropriate balance between individual privacy and the public interest in effective law enforcement and national security.

I commend the Bill to the Senate.

Ordered that further consideration of the second reading of this bill be adjourned until the first day of the 2000 budget sittings, in accordance with standing order 111.