Mr McCLELLAND (Barton) (12.24 p.m.) —The opposition supports the Telecommunications (Interception) Amendment (Stored Communications) Bill 2004 and has certainly agreed to assist in its speedy passage. The bill itself is only three pages long. For those reading it, it is perhaps complex in the sense that it is expressed in the double negative, but, as the Attorney-General just said, it essentially removes stored communications from the purview of the telephone interception legislation. They obviously include email transmissions, SMS messages and multiple SMS messages—whatever the technical expression is for those. As the Attorney-General said, the fact that they are removed from the telephone interception legislation does not mean that there is not a requirement for a person accessing those stored communications to do so by way of lawful authority: the consent of the person who is storing the communication; a warrant, for instance, issued under other legislation, be it for state police or the Australian Federal Police; or other lawful authority.
This has had a complicated history, not so much from the legal questions involved but more from the technical questions involved. The Senate Legal and Constitutional Committee has done some very good work in this area in the history of the development of this legislation and, if you like, some advances so that the Telecommunications (Interception) Act was amended to include stored communications. Complexities and difficulties regarding the definition of when a communication was stored and what it was are being rewound for a period of 12 months, as the Attorney-General noted, for the purpose of assessing just how these regulations and laws fit into the concept of new technology. I note, as the Attorney-General did, that the Telecommunications (Interception) Act was actually implemented long before these new forms of communications—emails and SMS messages in particular—came into being.
These are not insignificant issues from the point of view of law enforcement authorities. In particular, there is certainly evidence that those involved in organised crime and indeed those potentially involved in terrorism use these forms of communication, whether they are encrypted or not. I think it is fair to say that the main impetus for the winding back of the provisions has come from representations of the Australian Federal Police. I note that in their submission to the Senate Legal and Constitutional Legislation Committee they said:
The AFP welcomes this clarification and the practical solution that it provides for the effectiveness of investigations into serious Commonwealth offences, such as terrorism and people-smuggling. From the AFP's operational perspective, the amendments will ensure that investigators are not required to obtain two warrants to conduct a single search. AFP concerns about the two-warrant scenario centred on the potential that important evidence could be put at risk. Without the amendment allowing expeditious access to stored communications, highly disposable and easily destroyed forms of evidence could have been lost during the time taken to access the requirements to obtain TI—
that is, telephone interception—
warrants. Obtaining TI warrants as a matter of course prior to every search would have resulted in an unnecessary and onerous burden on limited Commonwealth resources.
I will give a practical example relating to the work of the Australian Federal Police in detecting so much child pornography. Had they obtained a warrant to inspect physical premises and to remove written material but, on confronting a computer, did not have an interception warrant, they would be presented with the difficulty of having to get such a warrant and come back on another occasion. That would provide an opportunity for the information stored on the computer to be destroyed. That would be a practical example where the representations of the AFP in this case would be valid. I understand that the information in that case was tracked down substantially through the Internet, so in that circumstance they probably covered all bases. But that would be a practical example of where these complexities could arise. [start page 32]
Essentially the debate and the controversy concerning stored communications—and it is one that has not been resolved—is whether you regard a stored email transmission as being in the nature of a letter on someone's desk that can be obtained via a normal search warrant or whether, because it has been sent electronically, you regard it as a telephone line type communication. At the end of the day I suspect that the answer is probably in the middle somewhere. No doubt that is something the review that the Attorney-General has committed to will consider; it will address those competing arguments. An aspect of the review that we would like the Attorney-General to consider is the practical effect of removing stored communications from the telephone interception regime. The Attorney-General said—no doubt he was correct—that there will still be a requirement for lawful authority to access a stored communication. As I understand it, that lawful authority, at least in some instances—with respect to email transmissions and perhaps SMS transmissions—may be found in the Telecommunications Act.
The member for Banks, who has previously made some public comments in this area, has expressed concern as to the frequency with which telecommunications companies and Internet service providers provide payment account details for law enforcement purposes. That is something that needs to be monitored. The telecommunications companies and providers are required to keep a record of when that occurs, but our concern is that, in his evidence to the Senate Legal and Constitutional Affairs Legislation Committee, the Privacy Commissioner said that his office simply did not have the resources to audit those records. The media has expressed a point of concern as to the frequency with which that information can be accessed for law enforcement purposes. Clearly there is a need for oversight. I draw the Attorney-General's attention to the recommendation of the Senate Legal and Constitutional Affairs Legislation Committee that the resourcing of the Privacy Commissioner must be looked at. I know there is an overlap here with the role of the Minister for Communications, Information Technology and the Arts in dealing with the telecommunications legislation, but certainly that is something for the Privacy Commissioner to look at.
I also note that the Privacy Commissioner expressed concern that information accessed other than through a telephone interception warrant perhaps did not have the same requirements regarding destruction when that information was no longer useful. The Privacy Commissioner noted that there were requirements for destruction under the telecommunications legislation, which I have to say I have not looked at in detail. In a submission to the committee, in summary, the Privacy Commissioner expressed concern that the information privacy principles did not contain a regime dealing with the obligation on those who had information which was no longer required or relevant to provide for the destruction of that information. So there are two important areas to look at: firstly, whether the consequences of removing stored communications from the telecommunications interception regime is going to increase the propensity of law enforcement authorities to request, and of telecommunications carriers and Internet service providers to provide, bill details and other information regarding communications; and, secondly, what requirements and resources there are to audit that and to audit the destruction of that information.
These are matters not without complexity and we appreciate that. We appreciate that this bill will enable our law enforcement authorities, particularly the Australian Federal Police, to undertake what is clearly a valuable role in the interim. But we note the Attorney-General's commitment to conduct a review and that this legislation will sunset after a period of 12 months. On that basis the opposition will support it.