Mr McCLELLAND (Barton) (11.38 a.m.) —The opposition will be supporting the second reading of the Telecommunications (Interception) Amendment Bill 2004 in the House, subject to one matter that I will mention in respect of the Senate proceedings. I can indicate that the opposition supports the principles of the bill. I note that a number of the bill's provisions—the ones that are of particular concern are those dealing with newer forms of communication, such as email and SMS transmissions—have been redrafted by the government since they were first introduced into the parliament in 2002. We have referred those provisions to the Senate Legal and Constitutional Legislation Committee to ensure that previous concerns identified by that committee have been addressed in the redrafted amendments, and we thank the government for cooperating in that further consideration by the committee.
Because telecommunications interception is an intrusive and in some ways extraordinary form of investigation it is important to place these proposals in context. The first statutory prohibition on telecommunications interception in Australia was enacted by the Menzies government in 1960 in the form of the Telephonic Communications Act. That act prohibited telephone interception except for national security reasons or technical purposes or to trace unlawful calls, such as nuisance calls. Under that act, there was no clear statutory authority for telephone interception for general law enforcement purposes. That situation changed with the passing of the Telecommunications (Interception) Act 1979, which now enables telecommunications interception warrants to be obtained for security and intelligence and for the investigation of criminal offences. The Director-General of Security may, for instance, apply to the Attorney-General for a warrant for security or intelligence purposes, and the Australian Federal Police, the Australian Crime Commission and a number of state and territory police forces and criminal investigation bodies may also apply to an eligible judge or Administrative Appeals Tribunal member for a warrant for law enforcement purposes.
The offences for which warrants may be sought are divided into class 1 and class 2 offences. As one would expect, class 1 offences contain more serious offences than those in class 2. For example, class 1 offences include kidnapping, narcotics offences and, significantly, terrorism. Among class 2 offences are offences punishable by imprisonment of at least seven years involving loss of life, serious personal injury or danger to persons and serious damage to property, as well as serious offences—including theft, tax evasion and extortion—that involve substantial planning and organisation, sophisticated techniques and possibly two or more offenders. Because class 2 offences, while serious, can be viewed as less serious than those in class 1, a wider range of circumstances must be taken into account as a safeguard before a warrant is issued in respect of those class 2 offences. The safeguards include having regard to the gravity of the offence and the impact of the warrant on a person's privacy.
In general, before a warrant can be issued the issuing authority must be satisfied that the information obtained from the interception will be likely to assist in connection with the investigation of the offence in which the person whose communications are to be intercepted is involved and that the information cannot appropriately be obtained by other methods. In fact, I think research suggests that at a federal level there is a very high success rate in terms of successful prosecutions occurring as a result of intercepted material. Regrettably, in some states that is not quite as high, but it is an indication, at least on the part of the federal agencies, that they take the requirements of satisfying the preconditions to obtaining this form of warrant very seriously. Once information is obtained through interception, the act imposes a general prohibition on its use as evidence in proceedings, subject to a number of exceptions that are set out in the act. The administration of the interception regime is subject to oversight by the Ombudsman, and must be reported to parliament annually by the Attorney-General—and that certainly occurs.
The telecommunications interception regime has appropriately been subjected to numerous reviews over the years to maintain its effectiveness in the face of new communications technology and changes in the telecommunications market and, significantly, to ensure that an appropriate balance is maintained between security and law enforcement and the freedom and privacy of Australian citizens. For example, there was the Barrett review in 1994, which formed the basis of new telecommunications funding arrangements in 1995 and 1997. There was the Boucher review in 1999, which followed the deregulation of the telecommunications market. The Ford review was also in 1999, and it led to the introduction of named person warrants and an extension of the uses that may be made of intercepted material. Most recently there was the Sherman review, which reported in June last year. These are in addition to several reviews of telecommunications interception legislation conducted by parliamentary committees over the years, including the 2002 Senate Legal and Constitutional Legislation Committee's inquiry into the package of antiterrorism bills, which I mentioned at the start of my speech.
I turn now to address the particular changes made by this bill. Firstly, the bill broadens the range of offences in relation to which telecommunications interception warrants can be sought. These will include new terrorism offences inserted into the Commonwealth Criminal Code 2002. Currently, the legislation refers only to Commonwealth cybercrime offences, but I understand that there could be a range of crimes that apply at the state level that are perpetrated over the Internet such as banking fraud offences. Finally, in regard to offences dealing with firearms, the current legislation refers only to dealing in armaments. That could be a far more narrow term than the concept of firearms.
The terrorism offences will appropriately be class 1 offences, regarded as serious offences, and the safeguards that I have previously referred to in regard to privacy and the like are less stringent for those significant offences. The cybercrime offences and the firearms-dealing offences will be class 2 offences. As I mentioned, a warrant for those two offences may only be sought where two or more offenders are involved, substantial planning and organisation or sophisticated methods and techniques are involved and where they are probably being committed in conjunction with other similar offences. They are regarded by the opposition, as by the government, as serious offences which justify the use of interception technology. We believe that fair-minded Australians would agree that these are very serious offences with the potential to cause major damage in our community—indeed, loss of life—and we must ensure that our intelligence and law enforcement authorities have the tools available under the telecommunications interception regime to investigate and prevent their occurrence.
The bill also amends the definition of interception to replace the existing reference to listening to or recording a communication with a reference to listening to, recording, reading or viewing a communication. The amendment is designed to address new forms of telecommunications technology which do not necessarily involve listening but, rather, the transmission of written words or images, such as SMS, MMS, voicemail and email. The bill would apply the general prohibition on interception to these new forms of communications and require telecommunications interception warrants to be sought before that can be undertaken.
SMS, MMS—multimedia messages—voicemail and email are examples of communications which can involve delayed access: that is, where a message is stored for period of time before it is read. The bill seeks to clarify the circumstances in which a telecommunications interception warrant must be sought to access such communications and in which circumstances some other form of law enforcement warrant must be sought, such as a police search warrant obtained under state laws.
In summary, and without intending to oversimplify the bill, the bill would exclude three situations from the telecommunications interception warrant regime and require the use of one or other of these other forms of warrant. I understand those three major areas to be, firstly, where the communication is being accessed by the intended recipient or by a person authorised by them; secondly, where the communication is being accessed after it has been accessed by the intended recipient or a person authorised by them and subsequent access does not involve the use of a telecommunications service or another form of remote access, such as listening to a voicemail stored on a mobile phone; and, thirdly, where the communication is being accessed using equipment that the intended recipient could have used to access the communication and the access does not involve the use of a telecommunications service or other form of remote access, such as reading an SMS or MMS on a mobile phone.
As I understand it, the concerns of the Senate Legal and Constitutional Committee were essentially that the previous framing of equivalent measures were ambiguous and did not sufficiently clarify for law enforcement purposes the concepts as to when a message was in transmission and when it had been received or accessed at the other end. Basically, the thrust was that, where it had been received or accessed at the other end, some other form of warrant was appropriate. So getting those definitions right in the context of the technology is complex and, again, we believe it is appropriate for the Senate committee to have another look at the wording to ensure that their concerns have been addressed.
As I mentioned, the issue was the subject of a detailed report by the Senate Legal and Constitutional Committee, which led to the government agreeing to withdraw and redraft the provisions in light of the committee's concern that the amendments were ambiguous and unclear. The government believes that the redrafted provisions in the bill seek to address the concerns raised by the committee. A lot of technical work has obviously gone into the drafting of the bill and preparation of the explanatory memorandum; nonetheless, we believe that the community would benefit from a general oversight by the Senate Legal and Constitutional Committee. We look forward to reading the committee's report, which will be delivered in a few weeks time.
The bill would also enable ASIO to record without a warrant calls made to, but not from, publicly listed ASIO numbers. Presently, ASIO can record such calls but only after a caller is warned that the call is being recorded. I understand that ASIO is concerned that this warning may have been causing callers who would otherwise provide important information to hang up. This is plainly not in Australia's national interest, particularly when potential terrorist offences are involved, and it indicates that the law as it presently stands does not get the balance quite right. The amendment would enable ASIO to record the incoming call without such a warning. We note that an equivalent amendment is commonly in existence in state jurisdictions for 000 emergency calls.
The further amendment that will be dealt with in the interception regime is one in respect of a current power that enables ASIO rather than a telecommunications carrier to execute a warrant in an emergency situation. The bill would remove the current requirement for ASIO to provide a copy of the warrant to the telecommunications carrier in such circumstances. We understand that ASIO is concerned that this requirement may compromise the security or urgency of the operation while serving no practical purpose, in the sense that the carrier is not involved in the execution of the warrant in any event.
Finally, in terms of the last amendment of significance the act presently enables chief officers of an agency to revoke an interception warrant and to delegate this power to a certifying officer, who must be an officer of SES level or equivalent. However, it can sometimes happen that an interception can be terminated before a warrant is formally revoked—in other words, the law enforcement officers have determined that the interception is no longer obtaining useful material or is not justified. Currently there is an anomaly in the act which prevents the certifying officers from exercising the power to terminate an interception before a warrant is revoked. This bill will rectify that by enabling certifying officers to exercise the power of terminating the interception when they deem it appropriate or consider that no useful purpose is obtained by that interception remaining in place.
In conclusion, the opposition supports the thrust of the bill and, subject to the report of the Senate committee, stands ready to work with the government to ensure that any outstanding concerns are addressed promptly so that the legislation can be put into effect as expeditiously as possible.