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Monday, 29 November 2004
Page: 17


Senator BUCKLAND (1:31 PM) —As has been mentioned by my colleague Senator Ludwig earlier today, the Telecommunications (Interception) Amendment (Stored Communications) Bill 2004 is a third attempt to clarify the application of the Telecommunications (Interception) Act 1979 to stored communications. It is a third attempt to get right what the Attorney-General has so obviously struggled with. It is a third attempt to resolve a legal challenge that at times has looked like it has overwhelmed the Attorney-General. As has already been mentioned by my colleague, the previous two bills with the same intent as this bill—the Telecommunications Interception Legislation Amendment Bill 2002 and the Telecommunications (Interception) Amendment Bill 2004—were withdrawn by the government after very serious flaws in the bills were identified by the Senate Legal and Constitutional Legislation Committee. These flaws were not just technical glitches; they were fundamental legal problems that, if ignored, would have been serious roadblocks to effective law enforcement operation in this country. They would have made the already very difficult job of investigating and prosecuting crime that much harder, and they very possibly could have led to the abandonment of ongoing criminal investigations.

In part, the last bill collapsed after the Attorney-General's Department and the Australian Federal Police could not agree about the correct interpretation of existing law. Unfortunately, it was fairly clear to the committee this time around that the stand-off was never resolved. When two senior Commonwealth government agencies like the Australian Federal Police and the Commonwealth Attorney-General's Department are incapable of agreeing on the interpretation of existing law which is the subject of a bill, it is a clear indication of a stunted process of legislative development by the Attorney-General. Both the Attorney-General's Department and the Australian Federal Police answer to the Attorney-General, yet he was unable to secure agreement between these two agencies before bringing this bill and its two predecessors into parliament. This sort of division among the Attorney-General's own agencies is regrettable. But it is in some senses understandable because it is a complex and novel area of law and, as such, there is always going to be some division of opinion about the actual contours of the law in totality.

However, what makes the Attorney-General's conduct so regrettable is that he had the hide to stand up in the other place in June of this year and criticise the opposition for referring this bill to the Senate Legal and Constitutional Legislation Committee. In one of the most hypocritical and ill thought out speeches to grace the pages of Hansard, the Attorney-General told the other place:

That is really why I am disappointed that, while the amendments have been applauded because they meet urgent operational needs, the potential for delay in the Senate is nevertheless foreshadowed.

The Attorney-General then went on to claim that the bill was:

... an opportunity for the opposition to retain—I hope—some credibility when it comes to matters of national security. It is not enough to suggest that you are supporting stronger intelligence and security law enforcement agencies if you put roadblocks in the way. So I would like you to have another look at it, if you can, and to see whether or not this bill can be approved in the Senate during the course of this week.

Of course what is so absurd about this statement of the Attorney-General is that the only roadblock in the way of this legislation was, and has always been, the incapacity of the Attorney-General himself to draft a bill that his department and agencies in his portfolio could agree upon. It is this incapacity that has stalled this bill, and it is this incapacity that has meant that the Australian Federal Police have not been able to benefit from the operation of this bill until now. It is simply astounding that the Attorney-General could stand up in the other place and lecture the opposition about credibility, when his agencies, his own department, and even senators from his own party, consistently rejected all of, or parts of, the bills he submitted to this place for debate.

The only roadblock is the Attorney-General's lack of legal capacity and the only person who seems to be short of credibility is the Attorney-General himself. He has been shepherded through this process by the hard work of the Senate committee and the experts and interested parties who took part in the inquiry process. The committee has now examined the current bill and has recommended that it proceed subject to an amendment mandating a review of the T(I) Act. The government has now made this commitment, so the opposition now supports this bill.

In its bipartisan report, the committee has identified a range of issues that should be considered in any such review, and the opposition believes it is worth while identifying those areas now so as to ensure these areas are contained in the review. The principal issue, which is referred to in the committee's recommendations, is whether stored communications should be exempted altogether from the act or whether the exemption should be more qualified. For example, the earlier 2004 bill sought to provide some protection for stored communications which had not yet been accessed by their intended recipient. However, consideration of this issue was complicated by uncertainty about whether current technology enables it to be determined whether the communications have in fact been accessed. In its most recent report, the committee noted in paragraphs 3.17 to 3.19 the conflicting evidence it had heard on this issue. For example, while some witnesses had said it was not possible to know whether emails have been accessed, one witness suggested that, under newer versions of software, ISPs would be able to determine this. Because of the significance of this question, the committee specifically recommended that it be examined in detail in any review of the T(I) Act.

It is just this sort of uncertainty that highlights the stupidity of the Attorney-General's earlier comments—namely, that the Senate committee was a roadblock in the way of the implementation of this bill. Here we have a situation where the original bill, without the benefit of the Senate committee process, made distinctions between forms of stored communication that were technically impossible to enforce. The Attorney-General had drafted an ill thought out bill. The faults in the bill were then identified by the Senate committee. They have now been corrected and we are in a position to move forward with the bill. Yet the Attorney-General chooses to question the opposition's credibility for sending the amended bill to a Senate committee to ensure this government has finally got it right after three tries.

In part, the distinction between read and unread emails was removed from the current bill because of the concerns expressed by the AFP that the earlier 2004 bill would prevent it internally monitoring emails for corporate governance purposes. However, as the Privacy Commissioner told the committee:

If there is continued uncertainty about whether such activities may contravene the Interception Act, this could be resolved by amending the legislation to ensure that while protection is maintained for personal telecommunications generally, e-security and corporate governance measures are permitted.

That is why the committee recommended at paragraph 3.21 of its report that the review of the T(I) Act consider whether this would be a more appropriate way to address those specific concerns. The committee also heard evidence about broader implications of allowing interception of stored communications using some other form of lawful authority besides the T(I) Act. One of these was the potential for telecommunications carriers to disclose communications such as copies of customers' emails under the Telecommunications Act. The act imposes quite specific obligations on carriers to keep records of these disclosures, and section 309 enables the Privacy Commissioner to check compliance with these obligations. However, the Privacy Commissioner told the committee:

With the work of the Office of the Federal Privacy Commissioner's compliance section currently focussed on complaint handling, it is not carrying out audits in a range of areas, including under this provision.

It is reasonable to assume that in future the disclosure provisions of the Telecommunications Act will be relied on a lot more, because carriers will no longer be able to insist on the production of a TI warrant before granting access to stored communications. When that happens, there will be an undeniable need to ensure that records are kept in accordance with that act through an appropriate program of audits. But under this government such audits have ceased altogether for lack of funds. In paragraph 3.30 of its report, the committee has drawn the government's attention to this, and we hope it is addressed in the course of the proposed review. The government has been warned.

The committee's inquiry was an important opportunity for all the implications of this bill to be drawn out and put into the public arena. It is simply outrageous that the Attorney-General should stand up in the other place and question the opposition's credibility because we allowed this bill to significantly benefit from the committee process. This sort of opportunistic behaviour is all too familiar from the Attorney-General, whose disgraceful attempt to politicise the massacre of school children in Beslan during the election campaign was, without doubt, a new all-time low in Australian political history. These sorts of silly, bullyboy tactics are not only an assault on the dignity of this place but also ineffective and counterproductive and will always be rejected by the opposition. They belong in the playground, not parliament, and the Attorney-General would do well to try to remember that.

It is important that these implications now be further examined and responded to in the review of the T(I) Act. The opposition note the government has given effect to the bipartisan recommendation of the Senate committee by committing to a review of the T(I) Act. In light of the substantial privacy concerns raised before the Senate committee, we believe this is desirable. We have previously seen numerous legislative reviews put on the backburner or fall by the wayside. This commitment means the opposition will ensure the government is held to the commitment it gave in this place.