Mr McCLELLAND (Barton) (1.27 p.m.) —When I was last speaking on the Telecommunications (Interception) Amendment (Stored Communications) Bill 2004—this is the second part of my speech in response to the second reading amendment—I was talking about the history of the legislation and the consideration by the Senate Legal and Constitutional Committee of the Telecommunications (Interception) Amendment Bill 2004. I mentioned that prominent among concerns voiced by that committee was a disagreement between the Australian Federal Police, who are advised by the Director of Public Prosecutions, and the Attorney-General's Department, who are advised by the Solicitor-General, about the existing relationship between the telecommunications interception regime and the AFP's comparatively new cybercrime powers under section 3L of the Crimes Act to remotely access stored communications in computers and the like. There was also ongoing concern about the ability of law enforcement authorities to access emails stored on ISP servers without a telecommunications interception warrant. Again, the government withdrew the amendments, and Labor cooperated to facilitate the timely passage of the remainder of the bill.
The bill presently before the House approaches the matter somewhat differently from the earlier 2004 bill. Firstly, there is no longer an amendment proposed to the definition of interception to encompass reading or viewing communications. Unfortunately, however, it is not explained in the material accompanying the bill why it was necessary to remove the proposal altogether. In the explanatory memorandum accompanying the earlier 2004 bill, that amendment was said to be necessary in order to:
... extend the protection afforded to communications in their passage over the telecommunications system to include protection from reading or viewing those communications. This extension addresses advances in technology which have resulted in many telecommunications now taking the form of written words, such as email, or even images and to which the concept of listening is not directly applicable.
We can only assume that the complete removal of this provision has something to do with the concern expressed by the AFP that it would no longer be able to read emails between the points of the firewall and receipt by its employees, for the purpose of internal security or integrity measures. It was obviously necessary to address that concern, but we are left wondering whether it was necessary to completely remove this provision from the bill. In many ways, we think removing that concept of reading or viewing, which obviously keeps pace with modern technology, has resulted in having potentially thrown the baby out with the bathwater.
Another departure from the approach in the earlier 2004 bill is that this bill no longer brings stored communications within the telecommunications interception regime, subject to the three exclusions I mentioned earlier, but rather excludes stored communications from the regime altogether. The only exception to this new principle is in the proposed new definition of `stored communication' itself, which brings within the telecommunications interception regime voice over Internet protocol and other communications `stored on a highly transitory basis as an integral function of the technology used in its transmission'. That technology is essentially using computers as another form of telephone communication, as I understand it.
Again, we recognise that these amendments will address the concerns raised by the AFP, in that there no longer appears to be a conflict with section 3L of the Crimes Act nor any requirement that an email must have been accessed by its recipient before a copy is accessed on an ISP server. However, the alternative approach in this bill does raise some unanswered questions. For example, how exactly did the Attorney-General's Department and the Australian Federal Police resolve their competing legal interpretations of section 3L of the Crimes Act? Did they agree to disagree about the existing position and instead agree to wind back the telecommunications interception regime to remove any potential obligation to seek a warrant in connection with remote access of the kind contemplated in section 3L? Again, this was the remote access to information contained on a computer to which I have referred. That is one interpretation of what has happened, but the government's statements to date leave considerable room for speculation about exactly what agreement the AFP and the department have reached and whether they have effectively wound back the clock as a result of an inability to reach an agreement that resolves the actual point of difference between them.
Moreover, it must be asked what the broader consequences are of the approach proposed in the bill. Essentially, as I say, removing the concept of protecting from interception communications which can be read or viewed creates its own questions. For example, it has been put to us and, I understand, to the government that one consequence of the amendments is to enable network owners or administrators, which would include telecommunications carriers and their employees, to freely access customers' electronic communications passing over their network, once they meet the definition of stored communications. In other words, this would be something akin to a post-office worker seeing a postcard coming through the mail exchange and having the ability to access and read that communication. I think that would be of concern to most senders and potential recipients of that information. These are issues of substance and concern, and we believe they should be looked at.
For these reasons, we do believe it is desirable for the bill to be re-examined by the Senate Legal and Constitutional Legislation Committee. The familiarity of the committee and the relevant stakeholders with the issues should reduce the amount of time needed to conduct any inquiry. These issues are of substance. In the meantime, we will not oppose the bill being given a second reading in this House. We acknowledge that the amendments will be sunsetted after 12 months, pending a more comprehensive review of the act, which we welcome. But we are determined to ensure that, in this important and sensitive area, parliament is entirely clear about the consequences of any legislation we put in place—even if it is for a period of only 12 months. [start page 30769]