Mr McCLELLAND (Barton) (1.50 p.m.) —The opposition supports the second reading of the Telecommunications (Interception) Amendment (Stored Communications) Bill 2004. Before turning to the provisions of the bill, I will say something about the bill's extensive and somewhat turbulent history. As the AttorneyGeneral alluded to, the Telecommunications (Interception) Act 1979 was developed a quarter of a century ago. At that time, Australia's telecommunications system was relatively homogenous, based around live, fixed line phone calls. Since then, there has been a range of new communications technologies developed. It is probably the greatest area in which technology has developed and expanded, and it has certainly developed on a large scale, including things that are now commonplace, such as mobile telephones, text and multimedia messaging, voice mail, email and other Internet based applications such as voice over Internet protocol—which, given my ignorance of these matters, I essentially understand is making telephone calls through the medium of one's computer. With these technologies, uncertainty can arise as to whether a communication is actually live, passing over the telecommunications system, and consequently whether a telecommunications interception warrant or some other lawful authority is required to intercept it. [start page 30123]
It is fair to say that, with respect to transmissions that are live and require warrants under the telecommunications interception regime, more paperwork is required, there is greater accountability and essentially, without following the procedures set out in the act, it is illegal to intercept such live communications. It is desirable, I believe, to address the uncertainty as to when a communication is live and when it has been a received communication so that everyone understands their rights and obligations under the law and, indeed, specifically that intelligence and law enforcement operations can proceed smoothly. It is also desirable that this be done in a comprehensive and considered way. In that context, we welcome the government's decision to ask the AttorneyGeneral's Department to conduct a comprehensive review of the act.
The Telecommunications Interception Act has been the subject of a considerable number of reviews in recent years, substantially as a result of technology but also as a result of greater law enforcement demands. For example, in 1994 Mr Pat Barrett, then deputy secretary in the Department of Finance and now the Commonwealth AuditorGeneral, reviewed the longterm cost effectiveness of the regime. In 1999 Mr Dale Boucher, then an associate member of the Australian Communications Authority and a former Australian Government Solicitor, revisited the issue, following the deregulation of the telecommunications market. Also in 1999 Mr Peter Ford, a first assistant secretary in the AttorneyGeneral's Department, conducted a review of telecommunications interception policy. He recommended the creation of named person warrants and an extension of the purpose for which telecommunications interception products can be used. In 2003 Mr Tom Sherman, a former chairman of the National Crime Authority, was engaged to conduct a follow-up review of the operation of the amendments which implemented the recommendations of the Ford review. Indeed, we understand that the government is still considering Mr Sherman's recommendations, which were delivered in June last year. So, in the context of those who have conducted these reviews, they were certainly all men who have made their contribution to Australia's Public Service and who had, we believe, the expertise to look into these matters.
It is against that background that I think a person would be forgiven for asking why another review is needed. Certainly we believe that Australia's telecommunications interception regime has met the tests of new technology perhaps better than other countries' regimes. For instance, I was interested to read in an article by David Bennahum in February of this year on the web site `Slate' about the difficulties being experienced by United States authorities with intercepting voice over Internet protocol communications under their CALEA legislation—voice over Internet protocol being, of course, telephone calls made increasingly, as they are, through computers rather than telephones. [start page 30124]
But we agree that the issues raised by this bill have proved an exceptional challenge and we hope that the proposed review will assist to resolve them. The first incarnation, if you like, of the bill that we are currently considering was as part of the Telecommunications (Interception) Legislation Amendment Bill 2000. In essence, the equivalent of the 2002 bill was found by the Senate committee inquiring into that bill at the time not to deliver the clarity that was being sought. Accordingly, the government withdrew those amendments and the rest of that bill proceeded with Labor's support and cooperation—at the time in a quite crucial context, as it was around the time of other antiterrorist legislation and general enhancement of law enforcement powers.
The second incarnation appeared this year as part of the Telecommunications (Interception) Amendment Bill 2004. Those amendments broadened 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'. This amendment would have had the effect of applying the general prohibition on interception to new forms of text based or image based communications, requiring warrants to be sought under the telecommunications interception regime, which I have indicated is somewhat more complex in terms of the necessary paperwork and accountability structures than what we understand to be the usual search warrant or entry type warrant provisions.
The bill also proposed a modified form of the amendment proposed in the 2002 bill by providing that a stored communication submitted using a delayed access message service is taken not to be passing over the telecommunications system in the following three situations—which are in themselves complex but are worth noting from the point of view of considering where we are heading with this legislation later. The first of those situations is where the communication is being accessed by the intended recipient or by a person authorised by them. Obviously, for instance, someone who has a hand-held mobile telephone with a recorded message who shows the contents of the message to another person is covered by that situation. The second is where the communication is being accessed after it has been accessed by the intended recipient or by a person authorised by them and subsequent access does not involve the use of a telecommunications service or other form of remote access, such as accessing a read email stored on an Internet service provider server. The third is where the communication is being accessed using the 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.
Again the Senate committee inquiry highlighted problems with these provisions. Prominent among these was a fundamental disagreement between the Australian Federal Police, advised by the Director of Public Prosecutions, and the AttorneyGeneral's Department, advised by the Solicitor-General, about the existing relationship between the telecommunications interception regime and the Australian Federal Police's comparatively new cyber crime powers under section 3L of the Crimes Act, which I will address when I subsequently resume this speech. [start page 30125]
The SPEAKER —Order! I thank the member for Barton for his accommodation. It being 2 p.m., the debate is interrupted in accordance with standing order 101A. The debate may be resumed at a later hour. The member for Barton will have leave to continue his speech when the debate is resumed.