TELECOMMUNICATIONS (INTERCEPTION) AMENDMENT (STORED COMMUNICATIONS) BILL 2004

17th Jun 04

Mr ORGAN (Cunningham) (1.46 p.m.) — welcome the opportunity to speak against the Telecommunications (Interception) Amendment (Stored Communications) Bill 2004. The Attorney-General told us in his second reading speech that the amendments address the practical implications of modern technology for access to law enforcement and regulatory agencies by excluding access to stored communications from the current prohibition against interception of communications.

The explanatory memorandum to this bill is written in such convoluted language that it is nigh on impossible for a non-lawyer to make any sense of it, but it is pretty obvious—even to my non-legal eye—that it is another run around the track on a subject where the government has already been rebuffed twice. Fortunately, I have been able to take advice from Electronic Frontiers Australia—and I have to tell you, Mr Deputy Speaker, that they are not happy. Electronic Frontiers Australia Inc., or EFA, is a non-profit national organisation representing Internet users that is concerned with online freedoms and rights. EFA was established in January 1994 and incorporated under the Associations Incorporation Act in May 1994.

As I have said, EFA are not happy with this bill, and I would like to bring some of their analysis to the attention of the House. The Telecommunications (Interception) Amendment (Stored Communications) Bill 2004, introduced in this place on 27 May 2004, is the Commonwealth government's third attempt since early 2002 to amend the Telecommunications (Interception) Act 1979 in relation to email, SMS and voice mail messages. The first bill, introduced in March 2002, sought to remove the protection from interception for delayed access messages. Those provisions were deleted by the government when it became clear they did not have sufficient support in the Senate. The second bill, introduced in February 2004, sought to increase the protection for delayed access messages. Those provisions were deleted due to disagreement between the Attorney-General's Department, relying on the opinion of the Solicitor-General, and the Australian Federal Police, relying on the opinion of the Commonwealth Director of Public Prosecutions, concerning the correct interpretation of the law.

The third bill currently before us, introduced in May 2004, not only reverts to substantially the same proposal as was rejected in 2002 but would remove even more of the existing protections from interception than the 2002 bill would have. The bill would inappropriately change the long-established balance in telecommunications interception law between individuals' rights to privacy and the needs of law enforcement agencies. We have just heard from the member for Hinkler about some of the uses that law enforcement agencies are able to make from some of these electronic messages.

Under current law, an interception warrant is required to access the contents of email, SMS and voice mail messages that are temporarily delayed and stored during passage over the telecommunications system—for example, stored on an Internet service provider's or telephone service provider's equipment, pending delivery to the intended recipient. This is the same as is required to intercept a telephone call. The bill before us would remove the existing protection from interception for email, SMS and other voice mail messages that have not been delivered to the intended recipient, thereby allowing government agencies and not only the police but also private investigation agencies, telephone companies, ISPs and other businesses to access such communications without a warrant of any type. Although the government frequently cites enthusiasm for technology-neutral laws, this bill is certainly not that. It treats email, SMS and voice mail telecommunications quite differently from facsimile and telephone call telecommunications.

The effect of the Telecommunications (Interception) Amendment (Stored Communications) Bill 2004 is substantially the same as the rejected provisions in the 2002 bill. However, this bill would make access to undelivered communications even more easily available to law enforcement agencies than did the 2002 proposal because it completely removes stored communications from the scope of the Telecommunications Interception Act. In addition, the bill would see access being made available to other people, including private investigation agencies, telephone companies, Internet service providers and other businesses.

The Attorney-General's media release of 27 May 2004 states:

...the amendments will enable access to stored communications, such as email and voicemail, without a telecommunications interception warrant.

The amendments will allow access to stored communications under other forms of lawful authority, such as a search warrant.

The same was said about the 2002 bill. For example, on 19 April 2002, the Attorney-General's Department informed the Senate committee hearing that agencies would be permitted to access stored communications under some other lawful authority like a search warrant.

The Telecommunications (Interception) Amendment (Stored Communications) Bill 2004, like the 2002 bill, would remove the need for an interception warrant to access the content of communications temporarily delayed and stored on a telecommunication service provider's equipment during transit. As a result, access to undelivered email, voice mail, SMS messages et cetera would become available not only with a search warrant but also without a warrant of any type. That must be cause for concern. The Telecommunications (Interception) Amendment (Stored Communications) Bill 2004 should therefore be abandoned. Frankly, it is a disgrace. It is the type of legislation one might expect to see in a police state, not a democracy. Some of the reasons for that have been outlined above.

In addition to those matters raised earlier, the bill fails to recognise that interception of communications invades the privacy of third parties who have nothing to do with the police investigation. As I said, the previous speaker did give examples of where police investigations have been used—for example, the instance of compiling 2,500 SMSs over a six-week period and how that was used in a court case. I think this bill goes too far in that direction.

Allowing access without a warrant to the telecommunications of people who are not even suspected of engaging in a crime, or allowing access even with an ordinary search warrant designed for the searching of property, fails to give due regard to Australia's obligations as a party to the International Covenant on Civil and Political Rights. Article 17 of the covenant provides:

(1) No-one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

(2) Everyone has the right to the protection of the law against such interference or attacks.

You can see that the main element of that first covenant is that no-one shall be subjected to arbitrary or unlawful interference with their privacy. There is no doubt that access to some of these technologies and communications is invading people's privacy. As I said, we have heard details of how SMS messages have been used in a court case. SMS is widely used in the community at the moment. Mobile phone usage in Australia is, I think, reaching about 70 per cent penetration. There is talk that in a couple of years 100 per cent of Australians apparently are going to have mobile phones. People are using mobile phones for private communications. It is clear that to open this up to private investigation agencies and other agencies without any due consideration and without any due safeguards in place is really opening up a can of worms, and we should be very concerned about that.

Although the government claims the proposed amendments are urgent, it should be noted that this claim was also made when the 2002 bill was introduced in the package of antiterrorism bills. As we have seen recently, the government has claimed that a lot of the bills being brought before this House are urgent, yet we are given precious little time to consider them, especially in light of the so-called war against terrorism. As I said, similar claims were made when the 2002 bill was introduced in the package of antiterrorism bills. Nevertheless, after the 2002 stored communications provisions were rejected, the government did not introduce its next proposal until two years later. Clearly the amendments were not urgent in 2002, and no evidence has been put forward to demonstrate the amendments are urgent now. The existing act should remain in place unamended for the forthcoming 12 months, while the Attorney-General's Department conducts the announced full review of the interception regime.

Members of this place should take the time to read the full analysis of this bill, which is to be found on the web site of Electronic Frontiers Australia, www.efa.org.au. If they do take the time to look, I believe they will reach the same conclusion that I have—that is, the Telecommunications (Interception) Amendment (Stored Information) Bill 2004 should be rejected. As has been pointed out, the Attorney-General's Department is looking to conduct a full review of the interception regimes in this country at the moment and there is no urgency in this bill before the House.

There is concern among organisations such as Electronic Frontiers, which is one of the peak community organisations in this area, that elements of this bill will open up a can of worms with regard to the invasion of privacy of ordinary Australians. I think we need to be very mindful of invading individuals' privacy in this country. It is becoming so much easier with the new digital technologies. As parliamentarians, we make great use of those technologies and we appreciate the importance of our individual privacy in the work we do. To open up some of these digital technologies to investigation by private organisations and by private investigators, I think is real cause for concern. It is something about which we should tread very warily.

I call on the government to withdraw this bill and to give more detailed consideration to the review by the Attorney-General's Department of the interception regimes operating in Australia at the moment so that this bill and others of a similar nature can be reconsidered, rather than pushing it through at this point in time, rather than calling it an urgent bill and rather than trampling on the rights and freedoms of Australians. We have to preserve and protect our privacy. As Electronic Frontiers have said, there are real concerns with this bill. It will open up privacy to misuse and abuse, and it is not something which the Australian Greens could support at this point in time.