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Monday, 18 August 2003
Page: 18758

Mr TANNER (6:12 PM) —I move:

That all words after “That” be omitted with a view to substituting the following words:

“whilst not denying the Bill a second read-ing, the House expresses its concern with respect to:

(1) the inadequate appeal mechanisms available to those who are denied telecommunications services under the provisions of the Bill; and

(2) the widespread accessing of individuals' telephone call data by Government officials without adequate safe-guards”.

We will be seeking to pursue the concerns embodied in these amendments when the bill reaches the Senate, in particular through whichever appropriate Senate inquiry process proceeds in regard to the legislation. The Communications Legislation Amendment Bill (No. 2) 2003 makes amendments to the Telecommunications Act 1997, the Australian Security Intelligence Organization Act 1979 and the Administrative Decisions (Judicial Review) Act 1977 in order to streng-then the national security arrangements that apply with respect to the telecommunications sector in Australia. The federal opposition is broadly sympathetic to the general thrust of this legislation and will not be opposing it in the House.

As I said, we support the thrust of the bill. It is designed to connect the government's national security arrangements and vetting procedures with the telecommunications sector. Obviously, telecommunications is a vital national sector and is inevitably wrapped up within any consideration of national security issues. It is entirely appropriate that, in a period when our national security framework legislation is being revised and updated because of the changing nature of threats facing Australia, part of that process should be to deal with the telecommunications sector and the legislation that regulates that sector.

The concerns that we have relate to some of the detail in the bill—and I will refer to them in my contribution this evening—particularly regarding what appear to be inadequate appeal mechanisms for aggrieved individuals who are affected by the operations of this legislation and also to what is a widespread practice, and that is the accessing of individuals' call data by officials, without adequate safeguards.

The two major themes of the bill are, first, to improve the national security checks on applicants for carrier licences in telecommunications and, second, to remove access to telecommunications services by persons on national security grounds where that is appropriate—by either removing or denying access to a person or persons who may constitute a threat to national security. In overall terms, our concerns tend to focus more on the second of these two provisions, but in both instances there are some issues of detail that I want to ventilate in the House this evening and which Labor will be pursuing in the Senate process.

The bill amends the Telecommunications Act 1997 to require the Australian Communications Authority to consult with the national security and law enforcement agency coordinator in the Attorney-General's Department before issuing a carrier licence. The Attorney-General, in consultation with the Prime Minister and the minister administering the Telecommunications Act, will be allowed to direct the ACA to refuse to grant a carrier licence on national security grounds. While the grounds for refusing carrier licences are not limited under the Telecommunications Act, the ability to refuse to grant a licence on national security grounds following a required consultation process with the Attorney-General's Depart-ment is not presently provided for expressly. In a broad sense, this is a worth-while and sensible reform which is compatible with the broad approach that is being taken with respect to national security issues elsewhere.

It is entirely appropriate that people holding telecommunications carrier licences should be able to pass national security checks before, in a sense, being given licence to operate our communications networks. It is, however, possible that a person who is subject to an adverse security assessment and is denied a carrier licence will not even be told of that decision, on national security grounds. The power to withhold notification effectively, therefore, would preclude any genuine appeal process. That is one issue that needs to be thoroughly explored in a committee process.

The Attorney-General is not required to give written notification to the Director-General of ASIO of these matters—namely, that he or she has decided to withhold notification of an adverse security assessment. Even if an adverse assessment is overturned on appeal by the Administrative Appeals Tribunal, that does not automatically negate the decision to deny a carrier licence which has been based on that assessment. The Attorney-General's power to deny a carrier licence effectively is very broadly and loosely set out in the legislation. Those are just some of the specific issues relating to the first provision that we believe would benefit from the kind of scrutiny that is often very effective in the Senate process.

On the second major limb of the legislation, the bill empowers the Attorney-General, again in consultation with the Prime Minister and the minister administering the Telecommunications Act—the communications minister for the time being—to direct a person not to use or supply, or to cease using or supplying, a carriage service or carriage services to him or herself or to any other person, on national security grounds. This is primarily directed, I suspect, at Australian based web sites, but it could also relate to a range of other possible scenarios. Obviously there are existing legislative arrangements which do empower the government to close web sites, including the legislation that was passed some time ago relating to the Internet. Ultimately this is an issue that will need to be teased out in the Senate process, where we will be asking some appropriate questions about the fine print of the legislation in this particular matter.

The direction that is able to be issued can be applied to individuals, groups or telecommunications industry participants, and we are concerned about the risk that people whose activities are essentially innocent will be caught in the net in this arrangement. It is not inconceivable that organisations like trade unions or community protest groups could inadvertently fall foul of the definition that is provided for in the ASIO Act and therefore be caught within the scope of this particular legislative instrument. Therefore it is necessary, in our view, to make sure that the detail of the legislation is examined thoroughly and that we do the best we can to ensure that that kind of thing does not occur.

From a general point of view, we do not have a problem with the notion of the denial of telecommunications services on national security grounds. It is not difficult to think of circumstances where any responsible government would seek to do that in order to protect the security of Australia and Australians. The issue that we have to confront is defining the parameters of that power and ensuring that the risk of that power being abused or misused is minimised and that the risk of innocent parties being caught up in the use of that power is effectively obviated.

The other concern that we have on this particular aspect of this legislation is the question of appeal provisions. It would appear that the legislation effectively truncates appeal provisions, especially on the merits of a decision, and therefore that may ultimately make things very difficult for individuals who may be caught up in the provisions of the legislation. That is another aspect that I believe will be very important to pursue in the process of consideration in detail of the legislation, in order to ensure that the genuine rights that individuals are entitled to exercise can be exercised. Broadly speaking, I do not think there is a difficulty with people having a right of administrative appeal on matters such as this, in order to ensure that, where a decision is made to deny a service to a particular person, that person does have some mechanism to contest that and that they have an ability, should they wish to do so, to have an independent assessment as to whether or not there is any substance to the claim that they constitute a threat to national security.

The bill has several other provisions, including amending the ASIO Act to enable a carrier licence applicant, a carriage service provider or a carrier to apply to the AAT for a review of any adverse or qualified security assessment that ASIO has provided to the Attorney-General. The Attorney-General will also be required to notify a person of an adverse security finding, except where that notification in itself would be contrary to the interests of national security. It also amends the Administrative Decisions (Judicial Review) Act 1977 to exclude from judicial review under the AD(JR) Act decisions made by the Attorney-General under the proposed amendments on national security grounds. Such national security decisions are not usually open to judicial review under the AD(JR) Act, as with the ASIO Act and the like. Judicial review will still be available in the Federal Court and the High Court. Labor is concerned that this provision may make it difficult for individuals or groups without significant financial resources to appeal government decisions made under this legislation.

The bill also clarifies existing obligations of carriers and carriage service providers with respect to data disclosure and interception arrangements. Carriers and carriage service providers will expressly be required to provide all relevant information associated with interception warrants, including call durations, the time, date and location of calls, along with call content. This amendment also provides further clarification of existing requirements.

There is in the legislation an updating and possibly a loosening of the definition of senior officers of law enforcement agencies who are empowered to certify the disclosure by carriers and carriage service providers of call data to accommodate changes in law enforcement agency structures and classifications. The commissioners, deputy commissioners or CEOs of relevant agencies will be able to nominate most categories of senior officers. This is another issue that Labor wishes to explore in greater detail. There have been some significant problems with people in government organisations accessing call data from carriers. The number of times that that occurs every year is in the hundreds of thousands. There has been some recent exposure of this issue in the Herald Sun newspaper, where it would appear on the face of it that the extent of accessing of call data of individuals by people in government organisations is far greater than any reasonable powers would justify. There is a strong suspicion that this data is being obtained for a variety of uses, including uses unrelated to the purposes of government, and therefore that the individual rights of many citizens are effectively being abused.

There is a need, I think, to crack down on the use of call data information that will reveal to a person all the details about who an individual has been calling or has received calls from, when they received calls, how long they were and all of that kind of thing. I suspect that this legislation does not in a sense expand that any further and, for that reason, I do not necessarily see this provision as sinister; but, nonetheless, it does require an exploration in greater detail because of that broader concern that is legitimately held in the community.

The legislation also amends the Telecommunications Act to ensure that all carriers and carriage service providers have an interception capability. There is a provision for exemption to be applied for for a period of 60 days, with a further extension capability if required. This is a sensible technical amendment to ensure that carriers do have adequate interception capabilities and therefore are able to comply with the requirements of national security from time to time. The current requirement for carriers and carriage service providers to provide annual interception capability plans is also amended to include statements about current and continued compliance with their interception obli-gations and to ensure that these plans are properly signed and authorised. There is also a change of lodgment date. Labor supports these technical amendments.

Labor accepts that in the current national security environment, which has changed—and I think it has been changing inevitably for some considerable time—protecting national security is a paramount priority and that there is a need for us to reform various legislative arrangements and powers in order to ensure that our capacity to protect our national security and the lives and wellbeing of Australian citizens is enhanced. There is a difficult balance to be struck and it will be inevitable that in this parliament we will have continuing debates about the right content of that balance, about where the line should be drawn and about how we protect not only the lives but also the liberties of individual Australian citizens. It is an extremely difficult balance at times. There are often very hard choices to be made. We have to balance, on the one hand, improbabilities about possible abuse or terrorists getting under a net, through a particular loophole, against, on the other hand, other improbabilities about abuse of government powers to harass, intimidate or otherwise disadvantage innocent citizens. These are not easy choices, and they can be seen underneath these particular legislative proposals as well. They are not quite as high profile as the legislation on terrorism or the ASIO legislation, for example; but, nonetheless, the same kinds of difficult issues apply.

I would urge the government to deal with these matters in a constructive and sensible way. There has been some significant progress made in dealing with some of these issues—for example, the ASIO legislation—and some good work by many, including the member for Banks, who is here at the table this evening. I think the same kind of spirit is appropriate for dealing with this legislation. Labor accepts the need to ensure that there is a nexus between our broad national security framework and the various agencies that are charged with fulfilling that responsibility and our telecommunications regulatory arrangements. That is entirely sensible.

Getting the balance right and ensuring that we have a regulatory regime in telecommunications that is sensitive to the needs of national security and that is going to ensure that any threats to national security involving the use of telecommunications networks are going to be picked up and dealt with is obviously a paramount priority. But we have to ensure that we extend powers to government ministers and to government agencies on as limited a basis as is necessary and in a way that the rights of individuals, the rights of a citizen—particularly the right of appeal and the right to be protected against arbitrary abuse—are protected. I look forward to pursuing the matter further with the government, including through discussion in the Senate.

The DEPUTY SPEAKER (Mr Hawker)—Is the amendment seconded?

Mr Melham —I second the amendment and reserve my right to speak.