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Monday, 1 June 1987
Page: 3729

Mr SPENDER(8.39) —The Telecommunications (Interception) Amendment Bill 1987 might be called an example of legislation by luck. We are lucky to have the Bill here. This Government, in the four years, two months and whatever number of days it is that it has been in power, has said a great deal about organised and serious crime. As an opposition it was frequently and virulently condemnatory of the then Government's work in the area of combating organised crime. Its rhetoric has been high and it has recently produced legislation to this Parliament which we have approved and which I have praised. It has taken over four years to get here. This Bill in itself is an object lesson of how legislation should not be prepared.

Let us go back to some of the warnings about the need for electronic surveillance through interceptions. The report of the Stewart Royal Commission of Inquiry into Drug Trafficking of 1983 came at the very beginning of this Government's time in office. What did Mr Justice Stewart do in his report on the Royal Commission of Inquiry into Drug Trafficking? He pointed out the need to increase interception powers. The interception powers then in existence were brought into being in 1979 by the Fraser Government and related only to serious narcotic offences. At page 659 the report states:

The main criticism of the present legislation is that the circumstances in which telephone interception may be made are far too narrow. There should be a right to apply for a warrant when it is likely that a criminal scheme or a conspiracy involving organised crime is on foot. For convenience the Commission here sets out its proposals:

1. An officer of the ABCI or an officer of the State BCI should be enabled to apply to a judge for a warrant to carry out interception of telephone conversations.

2. A judge should be empowered to issue a warrant for the interception of telephone conversations where the activities of persons are such as to point to the likely existence of a criminal scheme or conspiracy involving organised criminals. It should not be restricted to the commission of certain narcotics offences as presently provided for by section 20 of the Telecommunications (Interception) Act 1979 although similar procedures should apply to the issuing of such warrants.

I pause to point out that this was said by Mr Justice Stewart in February 1983 at the dawn of this Government's entry into power. The report continues:

3. Within 30 days of the expiration of the period of the warrant a report should be made to the judge issuing the warrant containing details of all steps taken under the warrant and of the results obtained.

4. Conversations intercepted shall not be admissible in evidence unless the trial judge makes an order that the interests of justice require such admission.

What happened? Nothing. On 2 April 1985 at a special Premiers Conference reference was made to the need to extend interception powers. What happened? Nothing. We then had Mr Justice Stewart's Age tape recommendations in April 1985.

Honourable members will recall the relish with which this Government approached the inquiry into the Age tapes. It was rather as though Government members were being dragged individually to the branding irons. But eventually because of parliamentary pressure and public pressure, the Government, against all of its instincts and against all of its desires, set up the Royal Commission of Inquiry into Alleged Telephone Interceptions. I will quote to the House one or two things said by Mr Justice Stewart in his report. First, at page 337 he said:

The evidence which the Commission has heard throughout this inquiry largely confirms this assessment of the police officers involved.

I interpolate that the assessment referred to the reasons why those police officers had taken the course of action that they did, which was to engage in illegal interceptions. The recommendation continues:

It also demonstrates that most of those involved experienced a deep sense of frustration arising out of the inefficacy of conventional methods of investigation unassisted by telephone interceptions. Many officers expressed particular dismay at the state of present legislation which effectively excludes State police from access to lawful telephone interceptions.

Two pages later, when dealing with positive results that the Commission had found, a recommendation states:

First, the material obtained by the Commission was of considerable value in identifying possible criminal offences. This is discussed in the confidential Volume Two of this report.

Secondly, an appreciable amount of the material has considerable value as criminal intelligence, notwithstanding that some of it is rather old.

Thirdly, the material obtained by the Commission has led it to the firm opinion that the present legislation governing the interception of telephone conversations is too narrow . . . Fourthly, the Commission believes that the present administrative system for lawful telephone interceptions is far too cumbersome.

What happened? We had brought before this Parliament the Telecommunications Interception Amendment Bill 1986. Then what happened? There appears to have been some kind of Caucus revolt, but I do not know; I was not there. So what did the Government do? It did what every brave and determined government does-it set up a committee. What was the committee going to do? It was to examine the question. Why was it needed to have a committee to examine the question? No one knows, but it was one of those things which rather fits Senator Evans's description of what motivated him to send a F111 aircraft to spy on Tasmania-that is, it seemed like a good idea at the time. In any event, by doing this you just might bury the problem for a while.

The committee was appointed on 4 June 1986 and it reported on 20 November 1986. The Government gave its response to the committee's recommendations and one year later, save about two or three days, we have a Bill before this House. We have four wasted years in which with the greater knowledge we have of the workings of organised and serious crime we know that crime has prospered. Why has it prospered? It has prospered because the law enforcement authorities were denied one of their prime tools against organised and serious crime. What is that? It is the tool of electronic surveillance of telephone conversations. There is nothing new about this. It did not take royal commissioners in Australia alone to conclude that it was a serious, usable tool. It is well known from overseas experience. The Attorney-General (Mr Lionel Bowen) has made a number of trips overseas. I begrudge him not one of those trips but, in the course of those trips, did he not find that there was a great use of telephone interception overseas? Did he not, for example, visit the Federal Bureau of Investigation, as I did last year, to look at its practices; or the Federal Narcotic Bureau, as I did last year, to look at its practices; or the New York Police Department, as I did last year, to see what its practices were? Did he not look at the legislation which governs the way these organisations can conduct surveillance? Did he not ask them about the problems, as I did last year and as did many others? Whether or not he did, four years, two months and some days later we are now debating a Bill which should have been brought in a long time ago.

Specifically, this Bill responds to the recommendations of Mr Justice Stewart. However, it contains significant defects because some of those recommendations have been rejected. I will now detail the recommendations that were rejected. Mr Justice Stewart brought in 12 recommendations, one or two of which are no longer relevant as they related to the transfer of documents so we need not consider them. However, the rest are relevant. Recommendation (3) states:

The power to issue warrants should be restricted to Judges of the Federal Court and of supreme Courts of the States or Territories.

The latter part of that recommendation is ignored: Judges of the Supreme Courts are not to have the power to issue warrants. I do not see that a major matter so long as Federal Court judges are accessible. There may be an argument for restricting the issue of warrants to, as it were, a board of judges. I know that in one of the jurisdictions that I visited that was done, and it was thought to be a very useful thing instead of having 30 or 40 judges empowered to issue warrants. Mr Justice Stewart's recommendation (4) states:

The Act be further amended to give a discretion to a Judge to authorise telephone interceptions by warrant after considering:

the gravity of the matters being investigated;

the extent to which the privacy of any person is likely to be interfered with; and

the extent to which the prevention or detection of the crime in question is likely to be assisted.

What Mr Justice Stewart does is to lay down some broad tests which raise questions of public policy, of public interest. That recommendation has not been followed. Instead, under the Act two classes of offences are created to which the interception powers may apply. The first comprises murder or kidnapping or equivalent offences; narcotics offences-importing or exporting; offences ancillary to those offences such as aiding, abetting, being knowingly concerned in or conspiring to commit such offences; or, where the interception is at the request of the National Crime Authority, offences which are the subject of the National Crime Authority's special investigations power, that is, offences that involve substantial planning and organisation committed in conjunction with other similar offences that involve theft, fraud, tax evasion, currency violation, illegal drug dealings, illegal gambling, obtaining financial benefit by vice, extortion, violence, bribery or corruption, bankruptcy and others punishable by at least three years imprisonment. I emphasis the punishment: Three years imprisonment. That, as it were, is the cut-off floor for the National Crime Authority in the exercise of its special investigation powers. It is under those powers that it is able to use its coercive powers-its powers to compel people to appear before it, to give evidence and to present documents.

The offences which I have just described are the class 1 offences. The class 2 offences are offences punishable by imprisonment for at least seven years, where the conduct involves loss of life or serious personal injury, or a serious risk of loss of life or personal injury; serious damage to property endangering life; drug trafficking; serious fraud; serious loss to government revenue; and ancillary offences including aiding, abetting and being knowingly concerned in or conspiring to commit any of those offences. Therefore, it will be seen that, in place of the broad approach that Mr Justice Stewart advised should be taken, the Government has taken a far narrower approach, although it has extended the interception powers. I welcome the extension that has taken place.

Recommendation (5) of Mr Justice Stewart, which was rejected by the Government, stated:

In appropriate cases the Judge issuing a warrant should authorise an interception to be made directly by a mobile unit without recourse to Telecom. This should apply to the Australian Federal Police . . . as well as State and Territory police forces and the National Crime Authority.

The Government has not accepted that recommendation. Effectively, all interceptions are to take place through the telecommunications interception division of the Australian Federal Police and Telecom Australia is to be used for that purpose.

Mr Lee —Hear, hear!

Mr SPENDER —I hear a cheerful `hear, hear!' from the other side of the chamber. Therefore, I ask: What is wrong with the Government's proposal? What is wrong is this: Evidence before the Joint Select Committee on Telecommunications Interception, which was set up by this Government, shows that there can be very substantial delays by Telecom in setting up an intercept. There was a delay of as much as 19 days in an intercept which was sought by the National Crime Authority. Sometimes interceptions are needed urgently. Criminals do not sit around and deal with business in a casual way. They do not pass the time away day by day calling each other up and saying: `Shall we still go ahead with it?' What they are doing demands speech and efficient use of resources. Time is of the essence. When I visited the Federal Bureau of Investigation in New York I asked that organisation how long it took to put on a tap and was told that in urgent cases it could be done in 30 seconds. That shows an appreciation of the need for speed, an appreciation that seems to be totally lost on this Government. We are now confining ourselves to Telecom, to the delays that may be inherent in Telecom and to the concerns that some individuals in Telecom may have about being involved in surveillance of organised crime and the prospect of having to give evidence, and we are excluding direct interceptions which could be carried out with all the necessary safeguards. Recommendation (7), which was not accepted, stated:

State Police should be empowered to make interceptions in their State independently of the AFP system.

The Australian Federal Police is the national police force but it is not to be found everywhere. I repeat that interceptions are devices which are needed to be used with speed, efficiency and celerity; not slowly, not through some cumbersome bureaucratic apparatus--

Mr Martin —And legally.

Mr SPENDER —Yes, and legally. It is essential that safeguards exist. Does anybody believe that the record of the State police forces will be worse than the record of the Commonwealth police forces? If the means are available to them to conduct interceptions legally and to use the evidence obtained in courts and if the sanctions are also there, they will be conducted legally because there is no reason to go down the illegal route.

It is astonishing that the Government has not taken up recommendation (12) of Mr Justice Stewart, which stated:

It should be an offence to sell or advertise for sale electronic devices designed for effecting telephone interceptions. Such devices should be made prohibited imports.

So they should. It should not be open to people to sell electronic devices that can be used for surveillance purposes. We all know that it has taken place recently in this country. I suppose some honourable members have seen what I saw recently; that is, a transcript allegedly of a telephone conversation involving a Minister. That kind of document should not be around.

Mr John Brown —I agree.

Mr SPENDER —I had not observed the Minister for Sport, Recreation and Tourism at the table. Such a document would not be around if the devices could not be bought and used.

Mr John Brown —If one of your characters was not disseminating it, it would not be around as freely as it is.

Mr SPENDER —Let me intercept the Minister and say that nobody from our side of the House made the document public and nobody would give credence to it. However, it is one of those things which we need to understand are an offence. It is offensive to decency in our society. That recommendation was not taken up. Let me go to the reasons for that. They were given in the Government response to the Joint Select Committee's report. The Committee's report stated:

With respect to the problem of illegal interception, the Committee recommends that:

(a) devices designed solely for effecting interceptions be declared prohibited imports, subject to control by Government licence for specific law enforcement purposes only;-

I wholly support that recommendation-

(b) the manufacture, importation, advertising, sale and possession, installation and use of such devices be made illegal, and subject to penalties in accordance with those prescribed for physically effecting interceptions . . .

I entirely support that recommendation of the Committee. The Government's response was woeful. It stated:

The Government will give further consideration to these recommendations.

Is that not marvellous? I suppose the Government will give consideration to the recommendations at the same speed that it has given consideration to the recommendations made by Mr Justice Stewart over the years. The Government's response continued:

The Australian Customs Service, while recognising the desirability of restricting the supply of interception devices, has reservations about the proposed import prohibition on devices designed solely for effecting telecommunications interceptions. The problems inherent in detecting such devices amongst the mass of electronic products at Customs control points, the lack of technical expertise to identify the specific task for which an electronic device is intended and the limited capacity of the Australian Customs Service to examine goods would make any import prohibition a cosmetic one only. It is for this reason that the Australian Customs Service has long argued that the only effective means of stopping trade in restricted devices is by measures applied at the point of sale in Australia.

Therefore, the ACS is saying that it would be very difficult to detect the importation of devices by those who are minded to smuggle them into the country. So it would be-but why is the Customs Service in place, and what is it meant to be doing every day of the week? It is meant to be policing-at the point of entry-the entry of prohibited imports, be they narcotics or other goods. The argument that the Government has put in response to the recommendation from the Joint Select Committee on Telecommunications Interception about the inability of Customs to do a damned thing is equally applicable to smuggling narcotics.

The truth is that the great majority of people who pass through Customs are honest Australians or honest foreigners visiting this country, who would not bring in such devices if they knew that their importation was illegal and subject to severe penalties. Mr Justice Stewart's recommendation No. 9 was that:

The admissibility of such material-

he was referring to intercept material-

should be determined by the common law.

The Government has also rejected that recommendation. Why? What are the common law rules about the admissibility of evidence? They have been laid down over the years and, essentially, the courts balance competing and important public interest considerations. On the one hand, there is the interest that guilty people be convicted; on the other, the interest that evidence illegally obtained should be treated with the greatest of concern and caution and that we should not provide an impetus or encouragement to the gathering of evidence illegally. The courts have been weighing those sorts of considerations for a long time. As I understand it, in all other cases where evidence is obtained illegally, the rule that will apply will be the common law rule. For example, where evidence is obtained by an illegal search, by breaking and entering or by intimidation, the common law rule will be applied; yet in this one case alone, that of telecommunications interception, a quite different rule will be applied. There is no basis in principle for a separate rule being applied to the illegal gathering of evidence by interceptions, any more than there is a basis for a separate rule being applied to evidence obtained by illegal search and by excluding, and treating quite differently, evidence obtained by intimidation, coercion or robbery. In Committee, we will move an amendment to overcome the specific rule that the Government wishes to introduce.

While we believe that the legislation has significant defects, and while it sets up a cumbersome system for interception, it is certainly an advance on existing legislation. To that extent, we welcome it. However, all of us must understand that it has taken four years; that delay helps criminals; and that there can be no possible justification for the sort of delay that we have experienced. Therefore, I move:

That all words after `That' be omitted with a view to substituting the following words:

`while not declining to give the Bill a second reading, the House condemns the Government for:

(1) its delay in introducing the legislation, and

(2) its failure to fully implement the recommendations contained in Mr Justice Stewart's Royal Commission report of April 1986 into Alleged Telephone Interceptions'.

Mr DEPUTY SPEAKER (Mr Mildren) —Is the amendment seconded?

Mr Ruddock —Yes, I second the amendment.