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Monday, 29 November 2004
Page: 80

Senator ELLISON (Minister for Justice and Customs) (5:32 PM) —Prior to question time I addressed the issue of the number of warrants that had been issued, which was an aspect Senator Greig touched on in his speech in the second reading debate. As well as that, Senator Greig raised the issue of privacy. I point out that we need to balance privacy interests with the need to provide law enforcement agencies with the most effective tools for investigating serious criminal activity. The Telecommunications (Interception) Act 1979 needs to be amended to take account of advances in telecommunications technology and the fact that electronic communications may be held as stored data while transiting a telecommunications system. The amendments in the Telecommunications (Interception) Amendment (Stored Communications) Bill 2004 do not make it easier for agencies to obtain telecommunications interception warrants nor do they change the strict record-keeping and reporting requirements imposed by the act. Rather, the amendments recognise the impact of developments in technology and represent a practical measure to assist law enforcement in gathering important evidentiary material.

Senator Buckland and Senator Kirk separately made much of the different interpretations of the interception legislation previously held by the Australian Federal Police and the Attorney-General's Department. As Attorney-General's have previously indicated, differences of opinion in relation to the interpretation of the legislation have since been resolved. The amendments now before the parliament are the result of close cooperation between the department and the Australian Federal Police to address operational issues arising out of the application of the act in relation to modern technology. I might add that it is not uncommon to see law enforcement, on one hand, and Attorney-General's, on the other hand, seeking to achieve a balance in relation to operational efficacy as opposed to what is legally viable. This is an example of that balance having been achieved.

The Telecommunications (Interception) Act plays an important role in protecting the privacy of people using the Australian telecommunications system. It is, however, equally important that the act not serve as an obstacle to law enforcement and other agencies needing expeditious access to evidentiary material that may be in the form of stored communications. Recent developments in telecommunications technology have meant that this is a real possibility because it is often not clear whether a communication has ceased to pass over the telecommunications system or is temporarily stored in transit. The amendments to the act that are now before the Senate address this by introducing a new stored communications exception to the general prohibition against interception. The amendments are an interim measure and will automatically cease to have effect 12 months after commencement, during which time the government will conduct a broader review of access to the content of communications.

The amendments do not, as has been reported, allow for unregulated monitoring of email and other stored communications. A person seeking access to a stored communication must have some lawful authority to do so; for example, under a search warrant or in their capacity as a network owner or administrator. The requirement for lawful authority will continue to provide an important limitation on access. A telecommunications interception warrant will continue to be required for live monitoring of telephone calls, email or SMS messages transiting our telecommunications system, web browsing or Internet chat sessions.

Senators have now had an opportunity to consider the report of the Senate Legal and Constitutional Legislation Committee on an identical bill which was before the 40th Parliament. Having considered that bill together with the submissions and other evidence before it, the committee recommended that it proceed through the parliament subject only to an amendment requiring that a review of the Telecommunications (Interception) Act be undertaken to consider the issue of whether stored communication should be exempt from the prohibition against interception. The government supports the conduct of a review. The Attorney-General has previously indicated that the government is committed to carrying out a review of the telecommunications interception regime, focusing in particular on the way in which access to electronic communications is regulated.

In light of the government's stated position in favour of a review, there is no need for the bill to be amended to require a review to be carried out. The government is committed to a review and it will deliver on this commitment, just as it delivered on a similar commitment made by the Attorney-General's predecessor when the Senate was considering the Telecommunications (Interception) Legislation Amendment Bill 2000. The terms of reference and reporting date for review that the government is now proposing will be the subject of a separate announcement by the Attorney-General in due course. I recall that Senator Ludwig raised some issues and whether they would be considered in the review. I can assure Senator Ludwig that the issues he noted in his comments on the bill will be considered in that context.

However, given the earlier comments on the matter by the Attorney-General, I can say that the review will be carried out by an independent person with appropriate qualifications and experience and that the broad focus of the review will be on access to electronic communications. As I have indicated, the amendments are temporary in nature and will cease to have effect 12 months after commencement. It is envisaged that the review will be completed and its recommendations implemented within this time frame. The review will seek submissions from the public and will furnish its findings, and so Senator Brown will be able to monitor the progress of the review.

The government is confident that the review will make a significant contribution to the development of telecommunications interception policy in Australia. In the meantime, the amendments in the bill will ensure that Australia's law enforcement and intelligence agencies will have the tools they need to investigate serious crime and threats to national security. This review, we believe, meets the concerns raised by the Senate Legal and Constitutional Legislation Committee, and we thank those senators for their work in reviewing the bill. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.