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Tuesday, 2 February 2010
Page: 10


Senator FIFIELD (1:14 PM) —I rise to speak on the Telecommunications (Interception and Access) Amendment Bill 2009. The Telecommunications (Interception and Access) Act 1979 currently includes special exemptions that enable interception and security agencies, as well as certain government departments, to access communications on their own computer network for network protection activities. However, these provisions are not permanent; rather, they were intended to operate on an interim basis while a comprehensive solution covering both the public and private sectors was developed. These provisions ceased to have effect after 12 December 2009.

The bill will enable all owners and operators of computer networks to undertake activities to operate, maintain and protect their networks. This will enable Commonwealth agencies, security authorities and eligible state authorities to ensure that their computer networks are appropriately used by employees, officeholders or contractors of the agency or authority, and it will limit to network protection purposes the secondary use and disclosure of information obtained through network protection activities. Secondly, the bill will enable the undertaking of disciplinary action against an employee, officeholder or contractor of a Commonwealth agency, security authority or eligible state authority who has been given access to a network. Thirdly, the bill covers the reporting to the relevant authorities of illegal behaviour that attracts a minimum three-year imprisonment penalty threshold, and will require the destruction of records obtained in undertaking network protection activities when the information is no longer required for those purposes. The 2008 legislation, which was passed with coalition support last year, implemented some interim measures in contemplation of the presentation of this bill. The amendments are largely technical in nature but involve intrusive powers.

The bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee. The committee reported on 16 November with a recommendation that the bill be passed. There was one substantive reservation by the Liberal senators on the committee: that the proposed section 63E be amended to provide that the section not apply where an agency has requested the disclosure of the information. The proposed section 63E provides that a person responsible for a network may voluntarily communicate lawfully intercepted information to an agency where that person reasonably suspects that the information is relevant to the commission of an offence. Concern had been expressed that agencies might be able to circumvent the warrant provisions of the act by suggesting voluntary disclosure. The coalition has sought advice on this point and we are satisfied that section 7 of the act would make such an attempt unlawful. There is much to recommend the view that the provision should nevertheless be amended out of an abundance of caution. However, section 7 governs the entirety of this act, creating the presumption that the interception and further communication of material is unlawful, subject only to specific authorisation. It would, I think, be ungainly to reiterate that point in disparate provisions every time the act is amended. Accordingly, the coalition supports the bill in its current form.