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Thursday, 25 November 1993
Page: 3798


Senator CALVERT (10.46 p.m.) —The Telecommunications (Interception) Amendment Bill 1993 is a very important piece of legislation. It is important because it relates to the privacy which we all enjoy as Australian citizens. The coalition recognises that we need to have a balance between that privacy and the powers which our law enforcement agencies require in order to ensure that they are able to control criminal activities. It is a difficult subject. In many ways, whatever action is taken is likely to offend one group or another, as Senator Spindler could attest to from the number of representations he has had. The coalition's position has always been consistent. We have repeatedly taken the view, in this chamber and in the other place, that crime cannot be tolerated and that we must make every endeavour to assure, by any means, that it is removed from our society. We would all be aware that there have been many recent technological advances. In fact, as senators, we have benefited greatly from those technological advances in the operation of our offices. However, any new advances create new opportunities for the criminal element and, therefore, may require amendments to the powers afforded to our law enforcement officers.

  The bill before us today amends the Telecommunications (Interception) Act 1979 by introducing a new range of powers under the act. It will make available a new procedure by which warrants issued to state police forces and agencies may be executed.

  In line with the new technological advances which I outlined previously, there will be a new computer-controlled system known as the TIRAC which will allow state agencies to receive the intercepted signal without its being routed through Canberra. In the past, the procedure was extremely time consuming and there was a loss of signal quality. It is important to understand that the Federal Police will still be the responsible authority in this matter.

  The bill will also introduce a central register of warrants, showing the particulars of all warrants under the act, and it will allow emergency interception by state and federal police authorities in a range of emergency situations. In the past, criminal elements have sought to evade aspects of the act by moving around the country. These amendments will also allow warrants of interception to be issued outside the state boundaries where necessary. As I have said before, the coalition has supported the general thrust of this bill, and I believe it will be supported by the Australian community in the main.

  I am also pleased that the government, and in particular my Tasmanian colleague the Minister for Justice, the honourable member for Denison (Mr Kerr), saw fit to incorporate into the bill the amendments proposed by the opposition in the other place. I add my congratulations to those of Senator Spindler and others to the honourable member for Tangney (Mr Williams) on his success in having those amendments adopted by the government.

  A number of concerns have been expressed by the Privacy Law Committee and the criminal law section of the Law Council of Australia, amongst others, in relation to the introduction of interceptions without a warrant in crisis situations. Many legal and civil libertarian groups contacted the coalition to express the view that such new powers went beyond an acceptable limit of checks and balances. It seems that they also spent a fair amount of time talking to Senator Spindler about this. The coalition supports those concerns, but at the same time we need to accept that law enforcement agencies must be able to respond immediately to a crisis such as a kidnapping, an extortion attempt or a siege.

  Under the government's original proposal, in the situation of exceptional circumstances such as a siege where it is impossible to apply for a warrant, it is possible for an interception to be initiated without a warrant. We believe that under those circumstances it should be a requirement that a warrant for interception be sought as soon as is possible and should that warrant be refused the interception must cease immediately. I am sure that most people would consider these to have been reasonable safeguards.

  The other case in which the government was prepared to allow an interception to occur without a warrant was in relation to a kidnapping or an attempted extortion. Again, whilst the coalition accepted that in such cases an interception should be allowed without a warrant, we nevertheless maintained that it should be a requirement that a warrant be applied for as soon as possible.

  I believe that one of the most important amendments contained in this bill is the provision for warrants of interception to be issued outside the boundaries of a state. Under subsection 39(3) of the old act, it was impossible to obtain such a warrant and it was widely recognised that this defect acted as an advantage in encouraging those involved in criminal activities to move from state to state. Such a restriction was unacceptable and the new provision will allow state authorities to exercise greater control over those who have sought to abuse the system.

  Many Australians would be concerned, I believe, about the interception of telecommunications without added safeguards. As I mentioned before, it is essentially a privacy issue and a matter of obtaining a balance between privacy and law enforcement. I believe it is important to place on record the comments of the Australian Law Reform Commission 1993 report on privacy which sought to provide a theoretical basis for a definition of privacy. That report claimed:

. . . an individual's claim to personal autonomy involves a claim to have some control over the way in which he interacts with others. This implies the ability to exclude others from conversations or communications into which he enters and the ability to prevent . . . other people spying on his activities.

Last week in this place I brought to the attention of the Senate the case of Mr Geoffrey Marr. Honourable senators who were here at the time and took notice of what I had to say—I suppose there are one or two—would probably be familiar by now with the fact that Mr Marr is a former Telstra employee who had been the subject of a most unacceptable investigation by Telstra. The activities of Telstra in intercepting telecommunications are also covered by this act. I am concerned, and I believe the Marr case highlights this fact, that we need to place greater controls over the interception capacities of Telstra. I have already stated that the bill before us today requires law enforcement authorities to obtain an interception warrant, but currently no such provision applies to Telstra.

  In Mr Marr's case, both his private telephone and his work telephone were connected to Telstra's CCAE recording equipment for up to two months without obtaining a warrant. I consider this to be a gross invasion of his privacy. Telstra has claimed that such action was necessary because of concerns it had regarding the activities of Mr Marr, but, as it turned out, such concerns were unsubstantiated and were later rejected. I believe that if Telstra is to be empowered to monitor telecommunications then it needs to have a much better case than just a gut feeling, which it appears was all that was required in the Marr case.

  The other issue which the Marr case raised was the failure of Telstra to retain records relating to its interception. It is a requirement for Telstra to maintain its records for three years, but in the Marr case the tape appears to have been mysteriously corrupted and the records destroyed. This was in direct contravention of Telstra's own guidelines and, in addition, creates great uncertainty about the ability of Telstra to adequately manage such wide-ranging powers.

  As I mentioned initially, this is a very difficult issue. No-one would deny the right of law enforcement officers to take whatever means are necessary to adequately investigate criminal matters. At the same time, the Marr case indicates that under some sections of this act there are not adequate requirements in relation to the activities of Telstra and I believe it is a matter which we should examine in the near future.

  I have spoken to Mr Marr and I know that he feels very disturbed that his privacy should be encroached on in this manner and I believe anyone here in this chamber would share that view. I would also argue that, as elected representatives, when the balance tips too far we have a moral obligation to act to ensure that the right of privacy for the individual is adequately safeguarded.

  As a postscript to what I have just said, I would like to share an experience my office was involved in only last week. I will let honourable senators draw their own conclusions, but it certainly disturbed me. I do not know whether other senators have had similar sorts of experiences. My office was endeavouring to send a fax to a solicitor in Sydney who was acting, coincidentally, on behalf of a former Telecom employee who had raised doubts about certain management practices. My staff tried several times without success. They checked the number and found that it was the correct number.

  Finally, they thought it may have been a telephone number so they dialled it. The phone was answered and the voice at the other end said, `Australian Federal Police, major crime investigation'. My staff were very concerned; they immediately hung up. After they had calmed down a bit, they tried the fax again and—surprise, surprise—it was transmitted successfully. I do not know whether it was just a crossed line or a coincidence, but it seems very much of a coincidence to me. I just wonder whether any other senators in this place have had those sorts of experiences from time to time.