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Tuesday, 2 February 2010
Page: 6

Senator LUDLAM (12:59 PM) —We resume debate on the Telecommunications (Interception and Access) Amendment Bill 2009. It makes a set of amendments to the Telecommunications (Interception and Access) Act, in this case to allow interception, copying, recording and disclosure of electronic communications in the name of protecting computer networks from malicious access and building confidence in the online world. I should say at the outset that the Greens will be supporting this bill for the intentions as set out by the government. It also allows specified government organisations, whether they be law enforcement, national security, defence and international relations related organisations, to intercept communications and undertake disciplinary actions to ensure that computer networks are appropriately used. I think that as our computer networks are already ubiquitous in certain fields, such as those named, the networks are also becoming much more ubiquitous in a household sense in that we are relying on them more and more as an essential service, whether it be for banking, paying the bills, education and so on. It is entirely appropriate that the government move regularly to assess the state of protection of these networks from hazards such as viruses and so on, or indeed the operation of espionage or hackers or criminal organisations, whatever it may be that threatens the networks.

The committee was unable to hold a hearing into the bill, but I should acknowledge at this point that it was improved through consultation. Quite a number of the recommendations that came through from stakeholders post the release of an August exposure draft were taken up by the government, and I would just like to put my appreciation on record that some of those recommendations were acknowledged and made their way into the final bill. It would have been really useful for the committee to have held a hearing, but unfortunately that was not the case.

This bill initially was listed by the government in noncontroversial and the Greens would have been very happy to keep it there. But there are a number of outstanding issues that were raised in submissions by the Privacy Commissioner, by online advocate Electronic Frontiers Australia, and by the Australian Law Reform Commission. So three organisations with a lot of information and a lot of expertise to share on matters like this recommended what they called ‘minor amendments’ to the bill to clarify the definition of what constitutes ‘network protection duties’ in the first place, what constitutes ‘disciplinary actions’, and to tighten requirements to destroy copies of intercepted communications. We let the government know at the time that we would be very happy to leave this bill in noncontroversial last year and we could have passed it quite quickly if the government had been prepared to move those last minor amendments that were required to make the bill just as good as it could be. The issues were thoughtfully raised and they could easily have been addressed through minor amendments. Unfortunately the government passed up that opportunity so we had it requested to be removed from noncontroversial and now we find ourselves here today, and I foreshadow that I will be moving amendments to give effect to those points that I have just raised. I will speak briefly to the intention of the amendments now and then we will move through the debate.

The Attorney-General claims that network protection duties vary for each network and therefore cannot be defined. Now the purpose of this bill is to define network protection duties and give them effect, so we believe that it is appropriate that some parameters should be set. They should not be exclusive or exhaustive but some guidance should be set on the scope and nature of the activities that we mean by network protection duties to remove any remaining ambiguity. We do not want to be prescriptive but we do want to guide the discretion of a judge in future to ensure that persons whose role is not to protect the network are not permitted to intercept communications, and that is a fairly clear distinction that we want to draw.

Persons who are authorised to intercept communications also should not be doing it for other purposes, whether through curiosity or malice for that matter. They should be only able to intercept those communications in the instance of protection of the network. This has very real relevance for all of us because these networks are so important for everything from online banking to doing the shopping, to getting the news and so on that people operating those networks, whether the Parliament House network or intranets for large or small corporations, the people we entrust to monitor and safeguard that traffic, basically have their role clearly defined and delineated. It is as much for the benefit of network operators as anything else to remove that ambiguity.

The Privacy Commissioner was supportive of clarifying what ‘network protection activities’ actually means in the bill and in that submission asked what measures are covered by the operation, protection or maintenance of the network and when an interception is reasonably necessary. So the Greens have moved an amendment, which we will get to in the committee stage, to give effect to that.

On the destruction of intercepted materials—and I would have thought that this would be the simplest one for the government to come along with—the Attorney-General has stated:

... imposing an obligation to destroy copies of lawfully intercepted information is unenforceable.

The Australian Law Reform Commission submission on that issue—and they have done quite a recent review and a very thorough inquiry into privacy issues—was that there was:

... no reason why copies of information obtained from a stored communication warrant must be destroyed, but that copies of information obtained from an interception warrant are not ... The covert nature of interception and access to communications requires the safeguard that the intercepted or accessed information is destroyed as soon as it is no longer required.

That is not complex or ambiguous and I would argue that it is entirely enforceable, just as it would be with the way we expect law enforcement operators to handle paper material that they might have seized from a filing cabinet.

We are supportive of the committee’s proposal for a review and we also support the opposition’s call for the government to make clear that disciplinary action only applies to activities that pose a risk to network security. In closing, the Australian Greens will be supporting the bill. We commend our amendments to the Senate.

The ACTING DEPUTY PRESIDENT (Senator Marshall)—Senator Ludlam, were they second reading amendments or are these amendments you have flagged for the committee?

Senator Ludlam —They are for the committee stage.