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Monday, 9 December 2002
Page: 7511


Senator MURRAY (9:58 PM) —Everyone accepts that government law enforcement agencies need powers to covertly intercept selected telecommunications. Effective attacks on crime and lawlessness require nothing less. Everyone also accepts that such powers are dangerous and intrusive and need to be properly controlled. The law was changed a few years back. Its most notable change was to give AAT members the power to issue warrants, and it is they who now issue the bulk of them. The consequence has been dramatic, with a tremendous growth in telecommunications interception in Australia. This must call into question the adequacy of the existing accountability regime to monitor and regulate. The question has always been as to whether potential abuse is minimised and whether controls are effective. As readers of previous speeches of mine on this topic would know, I have had my doubts on that score.

Modern terrorist threats have raised the stakes. More intercepts will be the result. How do we balance national security with privacy and civil liberties? The issuing of warrants is governed by the Telecommunications (Interception) Act 1979 as amended. Commonwealth and state ombudsmen monitor and oversee the use of telecommunications interception. Under the act, warrants can be obtained for two purposes. The first is for security and intelligence. The second is for law enforcement. The main area of libertarian concern to date has been with the latter due to the soaring number of telephone interceptions, which have increased exponentially. The number of warrants issued each year has increased nearly ninefold since 1988-89, the first year official statistics were published.

Where a law enforcement agency wishes to obtain an interception warrant, an application must be made to an eligible judge, a federal magistrate or a nominated member of the AAT. Interception warrants can only be issued in relation to the investigation of what are called class 1 or class 2 offences. Class 1 offences include murder, kidnapping, narcotics offences and terrorism offences. Class 2 offences include offences punishable by imprisonment for life or a period of at least seven years, where the offender's conduct involves serious personal injury, drug trafficking, serious fraud, bribery, corruption, serious arson or child pornography. An application by a law enforcement agency for an interception warrant must be accompanied by an affidavit containing prescribed information. There are also differences in the statutory prerequisites for issuing warrants for class 1 and class 2 offences. Thus, before issuing a warrant in the case of a class 2 offence, the judge, magistrate or AAT member must consider the gravity of the offence and how much the privacy of any person or persons would be interfered with as a result of the warrant application being granted. Further additional information must be supplied before a warrant can authorise entry onto premises.

In 2000-01, a total of 2,157 telecommunication interception warrants were issued to Australian state and federal law enforcement agencies. Compared to a number of 675 four years ago, this is more than a threefold increase. Federal and state law enforcement agencies have spent more than $17 million on interception activity in 2000-01. The most common categories of offences listed in telecommunications interception warrants are narcotics, drug trafficking, bribery or corruption, and murder. Telecommunications interception is seen as a vital weapon in the fight against crime. Is its greater use because criminals are increasingly using sophisticated telecommunications services or because getting interception warrants is so much easier? Are we reassured that, in the process, innocent persons are not accidentally or deliberately targeted for improper reasons and regardless of the immense intrusions into personal privacy?

The Australian Democrats believe there needs to be stronger external scrutiny of telephone tapping and covert surveillance activities by Australian law enforcement agencies. The body that oversees the function of inspecting the telecommunications interception records of the Australian Federal Police and the National Crime Authority is the Commonwealth Ombudsman. This is also the same for each state whereby the ombudsman for each jurisdiction oversees state police and law enforcement agencies. The technical and audit competency of the ombudsmen to perform these tasks is suspect.

In a media release on 15 September 2002, the shadow minister for justice and customs, Daryl Melham, said that the overseeing function performed by these bodies is questionable. The Commonwealth Ombudsman only employed two staff for an approximate time period of two months of the year to inspect the relevant AFP and NCA records. How do record inspections of warrants and their application process prevent abuse? Do the ombudsmen staff do random listen-ins and in-field checks themselves? Mr Melham mentioned that the two staff members were assigned to inspect records relating to 598 AFP warrants and 284 NCA warrants. Individual warrants are in force for an average of 72 and 42 days respectively and generate enormous volumes of information from a variety of intercepts and communications with a variety of people. It begs the question as to whether the level of external supervision for such intrusive surveillance activity is adequate. Statistically, on the grounds of human nature and probability, it is difficult to accept that no misdemeanours occur. If angels populated our police forces, we would not need periodic royal commissions into them.

Basic accountability and prudential considerations require the tremendous growth in telecommunications interception to be matched by an increase in audits and checks. There is an urgent need to strengthen the resources available for the external scrutiny of telephone interception activities and to provide more effective and proactive scrutiny beyond desktop review. One of the options is to take oversight away from the ombudsmen and give it to a dedicated office. Australia could consider an external oversight agency similar to the United Kingdom's Chief Surveillance Commissioner, which monitors all telephone interceptions, use of listening devices and other surveillance by law enforcement agencies.

The Telecommunications Interception Legislation Amendment Bill 2002, part of a package of counterterrorism legislation introduced by the Howard government on 12 March 2002, is now law. The provisions of the act broaden the purposes for which intercepted information can be used. They provide for, firstly, the addition of terrorist acts as offences that can be investigated by means of a warrant. The phrase `an act or acts of terrorism' is not defined in the bill. In the wrong minds, terrorist acts could simply end up being political activities that are disliked. They provide for, secondly, the inclusion of an existing state body, the ICAC, and a new state body, the Western Australian royal commission into police corruption, as bodies that can receive lawfully intercepted information from an intercepting agency when that information relates to their investigations. The purpose of those amendments was to ensure telecommunications interception was available as an investigative tool in relation to these offences. This is particularly seen as important in relation to conduct involving terrorist acts and child pornography offences, the latter because of offenders' increasing use of telecommunications services such as the Internet and email.

The Australian Democrats recognise the importance of telecommunication interception in helping combat crime and in assisting the fight against terrorism. But warrants and their use are open to abuse by any law officer or agency that lacks integrity. If we are increasing power and increasing the use of intercepts significantly, then we must put equivalent effort into protecting Australians from abuse. Our audits and checks must be beefed up. There is no sign of that happening. One of the definitions of `liberal' is favouring individual liberty. We must remind ourselves that this is a conservative government, not a liberal one. We need therefore to be on our guard.