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Monday, 29 November 2004
Page: 12


Senator STOTT DESPOJA (1:19 PM) —The incorporated speech read as follows—

The Telecommunications (Interceptions) Amend-ment (Stored Communications) Bill represents yet another initiative of the Coalition Government which has massive implications for the privacy of Australians.

“Privacy in communication is an essential foundation of a free and democratic society. Unless all Australians, including politicians and journalists—can communicate on a presumption of confidentiality, there would be a devastatingly chilling effect on free expression, on accountability, and on legitimate political discussion and organisation.”

This was the view advanced by the Australian Privacy Foundation in its submission to the Senate Committee inquiring into the Bill. This is also a personal conviction.

It has been disturbing to watch this vital foundation of democracy crumbling at the hands of the Howard government.

Legal safeguards for the protection of private information are limited in Australia. Our federal Constitution and the Constitutions of the six States contain no express provisions relating to privacy, or any human rights for that matter. Similarly, the protection afforded by the common law is minimal.

Australia lags behind the rest of the developed world in this sense so there is a very real need to protect the right to privacy through legislation.

The proposed amendment to the Telecommunications (Interceptions) Act will allow law enforcement agencies to access all forms of `stored communications'- including emails, SMS, pager messages and voicemail, without having obtained an interception warrant or any warrant at all.

This Bill clearly represents an enormous intrusion on the private lives of Australians.

There has been a clear general trend throughout the term of office of the current Federal Government to chip away at the privacy of individuals through the legislative process and also through international initiatives. The very fact that this Bill has been re-introduced so rapidly following the Government's re-election does not bode well for privacy protection during its next term in office.

This Bill was first introduced as part of a package of anti-terrorism Bills in 2002. Since that time, the Government has tried to create the impression that the powers conferred by this Bill are necessary in order to effectively combat terrorism.

However, when we look at the most recent report on the Telecommunications (Interception) Act, it emerges that only 4% of interception warrants during the last year related to terrorism.

Supporters of this Bill have argued that if the Act remains unamended, law enforcement agencies will be restricted in their efforts to gather information essential to effective law enforcement and the protection of Australia. However, there is little evidence to support this argument.

In actual fact, the current regime enables law enforcement agencies to access stored communications by obtaining an interception warrant. This process is designed to prevent abuses of power and ensure that privacy violations are limited to specific, limited and justifiable circumstances.

The Bill before us proposes to tip the delicate balance between national security and the right to privacy, once again, in the Government's favour.

The proposed amendment will create an artificial distinction between `traditional' telephone communications and `stored communications'.

In today's fast-paced society an increasing amount of communication is occurring by way of email, SMS, pager messages and voicemail. These mediums are increasingly being embraced as preferred modes communication. The law should not be altered to discriminate against the communication choices of a law-abiding individual but must continue to protect all forms of private communication from unwarranted interception.

According to the Australian Privacy Foundation, by facilitating access to private communications under the Telecommunications Act, rather than the Telecommunications (Interception) Act, this Bill will result in a much wider range of agencies, such as the ATO, Centrelink, Customs, the Australian Securities and Investments Commission and the Department of Immigration, gaining access to stored communications.

The privacy rights of innocent third parties will also be open to violation with the passage of this bill.

In evidence before the Senate Legal and Constitutional Committee, the then-Acting Privacy Commissioner, Timothy Pilgrim, explained:

“By removing stored communications from the protections of the Interception Act, important privacy protections relevant to the privacy of third parties will no longer apply.

In the absence of this protection... the handling of personal information of third parties by law enforcement and other investigative agencies will be limited to a lesser accountability framework under the Telecommunications Act.”

Mr Pilgrim also highlighted the fact there will be no obligation to destroy information that is no longer relevant and, therefore, information about third parties could be retained indefinitely by law enforcement agencies.

In closing, I would like to make the point that it is important to view this Bill in context—this is not an isolated threat to the privacy of Australians. In fact, this Bill comes at a time when we are witnessing an unprecedented assault on the right to privacy in this nation.

This assault dates back to 1997, when the Howard Government implemented budget cuts to the Office of Privacy Commissioner—removing vital funding which has never been fully restored. Today, limited resources continue to inhibit the ability of the Privacy Commissioner to fulfil her mandate. The office weighed down by a backlog of cases as its resources have become inadequate to deal with the increasing number of privacy complaints.

I understand that the Privacy Commissioner simply cannot deal with all complaints received by her office and has had to identify a limited number of priority areas for action.

The funding challenges plaguing the office of the Privacy Commissioner are exacerbated by the limited reach of the Commonwealth Privacy Act, which takes a “soft touch” approach to privacy protection. The Act has been criticised for falling short of international standards and is notoriously difficult to enforce. Initially restricted to the handling of information by Commonwealth agencies, the Act was eventually extended to the private sector in 2000, with a number of exemptions—notably, political parties.

The exemption of political parties from the privacy protection regime has enabled the Coalition and Labor to maintain extensive databases containing detailed information about individual voters, including their political views. Information is entered onto these databases without the knowledge or consent of the individuals concerned, and they have no right to access that information or correct it if it is inaccurate.

Another front on which the privacy of Australians is being threatened is identification reform. The Australian Passports Bill, introduced during the last Parliament and likely to make a comeback, sought to facilitate the use of new ID technologies in relation to Australian passports. The Bills Digest in relation to that Bill warned that it could:

`make the passports system a process by which the Commonwealth could obtain and centralise a large amount of personal information about Australian passport-holders which could be put to a very broad range of uses with minimal parliamentary scrutiny.'

While the Bill did not expressly identify the type of technology proposed, the Minister has indicated that the Government intends to introduce a biometric system for passports. The Australian Privacy Foundation cautioned that this technology, coupled with the range of ways in which the government could use the information, could transform Australian passports into de facto “Australia Cards”.

I was disturbed to read an article in the Bulletin in May of this year, which suggested that —far from introducing a de fact Australia Card —the Government was exploring of the possibility of introducing an actual identification card for all Australians, using smart-chip technology.

That article reported that Peter Solomon, a former Liberal powerbroker and current head of a company which produces smart-chip technology, was claiming that “the PM and several senior cabinet ministers have backed the proposal and believe the public is ready to accept the idea.”

According to Mr Solomon, a national ID card will be implemented in stages over the next few years, commencing with the introduction of the already-announced HealthConnect Card.

Mr Solomon is quoted as saying:

“Once we have the health card in place, we can add Medicare details, tax file number, driver's licence and police data, superannuation details, all aspects of social security—the basis of a truly multifunction card.

“It will rapidly become an apolitical issue, and it will not be a very difficult task to convince society on the question of civil liberty.”

I acknowledge that the Prime Minister has denied meeting with Mr Solomon, however Attorney-General, Phillip Ruddock has admitted meeting with him.

If there is any substance to Mr Solomon's comments, they are incredibly disturbing and I take issue with his view that this will rapidly become an apolitical issue—it will not. There are many within the community who greatly value their right to privacy and will not permit unjustifiable violations of this right without a fight. Indeed, I have received correspondence from such constituents in recent weeks.

What concerns me in relation to this issue is that, following the changeover of the Senate next year, the Government will have the opportunity to get radical changes such as these through the Parliament. For this reason, it will be vital for the community to keep a careful watch on the Government's plans and to campaign hard against unacceptable proposals.

In closing, I would like to make the point that the privacy of Australians is not only being threatened at a national level, but also at an international level.

According to a report of the European Parliament in 2001, Australia, along with the USA, UK, Canada, and NZ, is a participant in a global network for intercepting communications under the UKUSA agreement. The report affirms suspicions that the purpose of this system, code-named ECHELON,

`... is to intercept private and commercial communications, and not military communications'.

This same report specifically identified Australia's involvement in ECHELON and the location of the relevant bases at Geraldton and Pine Gap. It stated that the Australian Government has `full knowledge of all activities' at Geraldton and sets the daily agenda for its operation.

According to evidence provided by Professor Desmond John Ball to the Joint Standing Committee on Treaties on 9 August 1999, the activities at Geraldton include `monitoring emails, other electronic communications, data flows, transactions from banks...and fax traffic' and the interceptions at Pine Gap can include `even private communications'.

A report on the Sunday program on Channel Nine on 23 May 1999, quoted Mike Frost, a former Canadian CSE spy as saying:

`there are concerns even inside DSD that Echelon's intrusive surveillance powers are not restrained by an Act of Parliament. The operational powers of DSD are tasked by a directive of government politicians in cabinet...and neither you nor I will ever be allowed to know what those operations are.'

The European Parliament also reports that ECHELON allows for the sharing of intercepted private communications with member nations such as the United States. In practice, this means a private telephone conversation between two civilians, intercepted by the Geraldton station in Australia can be listened to by the Secret service in the United States, the United Kingdom, New Zealand and Canada.

The intrusive powers of ECHELON are almost incomprehensible. This is a system which not only monitors intimate communications between individuals and confidential communications between colleagues and corporations, it also traverses the boarders of sovereign states and represents the beginning of a truly global system of surveillance. It totally disregards a person's right to communicate freely, a right which is the pillar of any free and democratic society.

A culmination of all these privacy intrusions reveals a Federal government that is moving closer and closer towards a community which is subject to constant surveillance. This trend needs to be stopped. It is clear that the Government is avoiding proper accountability to the Australian public.

This Bill only reinforces the ambition of Federal Government to increase the sweeping power of the Executive over people's lives. This aspiration comes at a high cost. It will rob the Australian people of their civil liberties, their right to communicate freely and their right to privacy.