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Monday, 29 November 2004
Page: 9

Senator GREIG (1:07 PM) —We Democrats find the Telecommunications (Interception) Amendment (Stored Communications) Bill 2004 concerning and believe it has the potential to violate the privacy of many thousands of Australians. The bill will allow ASIO and a range of law enforcement agencies to access the text messages—that is, SMS messages—emails and voice mail messages of Australian citizens without the need for an interception warrant. That for us is the critical point. These proposals were originally introduced by the government as part of its suite of antiterror bills in 2002 and attracted, rightly, strong criticism from many groups and individuals within the broader community.

I want to begin my remarks today by emphasising that the interception of private communications between individuals is a very intrusive practice. Individuals ought to have the right to communicate privately with their friends, family and loved ones. Similarly, in a business context, Australian workers have the right to communicate privately with their employers, employees, colleagues and clients. Human beings are continually developing new and innovative ways of communicating with one another, and it is important that Australians have the freedom and the confidence to embrace these new technologies without fear of government surveillance.

The right to privacy imposes a vital limitation on executive power. When that right is eroded, we are left with the slightly Orwellian prospect of the state having power to control the lives of those it governs. In the absence of a bill of rights, there is no constitutionally or legislatively enshrined right to privacy in Australia. However, a number of important protections do exist. Not surprisingly, most of these are contained within the federal Privacy Act. The Telecommunications (Interception) Act also contains an essential protection in that it prohibits the interception of, listening to or recording of telecommunications between individuals. Of course, the act also sets out a number of circumstances in which this prohibition does not apply. In particular, it enables ASIO to intercept telecommunications for national security reasons and law enforcement agencies to engage in interception for the purposes of investigating and prosecuting criminal offences. In each of these cases, an interception warrant is required before any interception is permitted.

Under this bill, however, Australian intelligence and law enforcement agencies will be able to access certain forms of telecommunications—as I have said, SMS, email and voice mail messages—without an interception warrant. The Bills Digest argues:

The fundamental issue ... is what privacy regime should apply for emails, text messages and voice mail, as well as for similar forms of electronic communication that may be developed in the future. Should official access to private communications using new forms of electronic technology be allowed outside the type of protocols in the Telecommunications (Interception) Act simply because the communications have reached a point in their transmission where they are deemed by the Bill to be no longer `passing over' a telecommunications system?

We Democrats argue that the answer to that question rightfully ought to be an emphatic no. We see no good reason that electronic communications, such as SMS, email and voice mail, should be treated any differently from telephone calls simply because they can be stored and accessed at a later time. The use of SMS, email and voice mail as forms of communication is increasing rapidly, and the Australian community should be free to reap the benefits of these technologies without fearing government access to their private communications. We Democrats believe these proposed changes will undermine to some extent the fundamental purpose and intent of the Telecommunications (Interception) Act and will enable unjustifiable infringements of personal privacy.

One of the fundamental points that needs to be made about interception warrants is that they provide some degree of accountability in the exercise of invasive powers. For example, law enforcement agencies must satisfy a judge or member of the AAT that a warrant is required for the investigation of a particular offence. The act limits the range of offences in relation to which a warrant may be issued, and the Attorney-General is required to present an annual report to parliament on the number of warrants issued, the cost of implementing those warrants and their usefulness in terms of whether they yield information relevant to the prosecution of an offence. Under these new provisions, law enforcement agencies will be able to access SMS, email and voice mail messages, whether or not they have been received by the intended recipient, without the need for an interception warrant.

What this means in practical terms is that, firstly, there will be no scrutiny of these powers before they are exercised by law enforcement agencies. This is because it will not be necessary to satisfy a judicial officer that gaining access to private communications is necessary for the investigation or prosecution of an offence. Secondly, law enforcement agencies will now be able to access private communications between individuals for the purpose of investigating even the most minor offences. Thirdly, there will be no parliamentary or public scrutiny of the exercise of these powers because the Attorney-General will have no obligation to report to parliament on their use. What this in turn means is that both the parliament and the community will be kept in the dark about the extent to which law enforcement agencies are accessing private, personal SMS, email and voice mail messages. We find that totally unacceptable.

Even when there are strict reporting requirements in place—as with the existing interception powers—we are seeing a massive increase in spying by law enforcement agencies. The introduction of new powers without any associated reporting requirements can only exacerbate this situation. The annual report on the Telecommunications (Interception) Act for 2002-03 demonstrates that our law enforcement agencies are undertaking more interceptions than ever before. The report indicates that a total of 3,058 warrants were issued to law enforcement agencies in the previous reporting year, representing an increase of 41 per cent over the past two years. Perhaps most disturbing, though, is the fact that Australians are having their phones tapped at a rate some 30 times higher than the rate of phone taps in the United States.

The most important point to make about these figures is that they only represent the number of warrants issued, not the number of interceptions undertaken. In actual fact, each warrant may authorise the interception of tens of thousands of individual phone calls. While the annual report argues that `interception continues to be an extremely valuable investigative tool', the figures reveal that many interceptions do not in fact result in conviction, prosecution or even arrest. There was a decrease not only in the number of arrests per warrant but also in the proportion of warrants which yielded information used in the prosecution of an offence. What is clear here is that hundreds of warrants have been issued and thousands of interceptions have been undertaken which have ultimately had no forensic value. For example, more than 1,500 of the warrants issued last year did not result in any arrests. The report also highlights the enormous cost associated with interceptions, with more than $25 million being spent in connection with the execution of warrants during the past year alone. So the picture which the annual report paints is one of Australian law enforcement agencies undertaking more interceptions and spending more money on them, yet not necessarily obtaining any more information relating to criminal offences.

It is against this backdrop that the government is now seeking to give these law enforcement agencies unrestricted and unaccountable access to SMS, email and voice mail messages after they have been received. There will be no restriction on the types of investigations in which these communications can be accessed and no requirement to report to parliament. But the most fundamental point I want to make here is that these powers are being given not only to law enforcement agencies but also to ASIO, to be used in the performance of its national security functions. Under the current telecommunications interception regime, ASIO exercises its interception powers in a virtual accountability vacuum. ASIO's entire accountability in this context is limited to scrutiny by the Attorney-General. The disturbing situation that this creates is one in which the power to authorise the extensive bugging of private conversations between individual Australians rests with the same minister who presided over the `truth overboard' scandal.

We Democrats believe that there is a desperate need for greater accountability in relation to the exercise of telecommunications interception powers by ASIO. At present the Australian community has no idea of the extent to which ASIO is exercising these powers. Given the significant violation of privacy associated with these powers, we strongly believe that some degree of accountability is absolutely vital to guard against their abuse. In advocating this, I am not naively suggesting that ASIO should be treated in the same way as some other government department. Clearly, ASIO, as an intelligence agency, cannot achieve the same level of public accountability and transparency as we would expect from other government departments, but it should not be free from any accountability in relation to its interception powers. We believe that ASIO should be required to provide parliament with basic information about its use of interception powers—for example, the number of warrants issued to it by the Attorney-General. We do not believe that this would impinge upon ASIO's ability to promote and protect Australia's national security.

While the Democrats strongly oppose the provisions of this bill which facilitate access to stored SMS, email and voice mail communications without a warrant, we know that Labor supports them and that they will therefore soon become law. As I have said, accessing private communications without the knowledge of the individuals involved is a very intrusive practice. We believe that this is unjustifiable in all but the most exceptional circumstances. Where the government does engage in this practice, it must be clearly accountable, at least to parliament. This bill reduces accountability and radically extends the circumstances in which the government can lawfully access private communications between individuals. We Democrats do not support these moves and we will not be supporting the bill in total. Before I close, Mr Acting Deputy President, I point out that my colleague Senator Stott Despoja, who has a strong interest in this area particularly as it relates to privacy and, as you may know, is on leave owing to travel restrictions, asks that her speech on this bill be incorporated in Hansard. I understand that the protocols have been observed in terms of circulating it to the relevant whips. I seek leave to incorporate Senator Stott Despoja's second reading contribution.

Leave granted.