Please note: This is an extract from Hansard only. Hansard extracts are reproduced with permission from the Parliament of Tasmania.
TELECOMMUNICATIONS (INTERCEPTION) TASMANIA BILL 1999 (No. 8)
Mr LLEWELLYN (Lyons - Minister for Police and Public Safety - 2R) - Mr Speaker, I move -
That the bill be now read the second time.
The purpose of this legislation is to allow Tasmania Police to be declared an authorised agency for the purpose of lawfully obtaining warrants for the interception of telecommunications, in accordance with the Commonwealth Telecommunications (Interception) Act 1979.
Tasmania Police currently utilises technical and physical surveillance in the prevention and investigation of crime and criminal activity. The methods employed include: video and physical surveillance, listening devices - pursuant to the Listening Devices Act 1991 - and tracking devices. In addition to surveillance methods, Tasmania Police also relies heavily on telecommunications capabilities for the management and resolution of sieges and other high-risk situations.
In addition to the use of telecommunications by Tasmania Police, the telephone and other means of telecommunications - for example, facsimiles and pagers - are frequently employed by those involved in crime in this State. In particular, digital telecommunications afford criminals the technology to converse and coordinate their activities in the knowledge that their actions will almost certainly be undetected by police and other regulatory bodies. The mobile telephone has become an extremely effective and relatively inexpensive criminal tool.
At present, Tasmania Police is only able to monitor telephone conversations when they are conducted in close proximity to a lawfully installed listening device. Installation of such a device is often difficult as it is usually occasioned by covert entry to private premises. A further restriction is that the device is only capable of receiving one side of the conversation. The use of listening devices is costly, potentially dangerous and often produces results that are ambiguous in respect of the full conversation. Logistically, it is almost impossible to use listening devices to monitor mobile telephones. You would have to have a roving listening device.
Mr Hidding - Following around that particular telephone.
Mr Green - Perhaps we could attach one with a beep.
Mr LLEWELLYN - We could attach it to the mobile.
Mr Hidding - That's right - covertly.
Mr Rundle - We wouldn't want to listen to yours, David, your conversations would be too boring.
Mr DEPUTY SPEAKER - Order. You would want a long tape.
Mr LLEWELLYN - The Telecommunications (Interception) Act 1979 provides the authority for authorised agencies, subject to application of a warrant, to covertly and remotely intercept telecommunications. However, an agency cannot be authorised to intercept telecommunications unless State legislation is in place that satisfies the requirements of section 35 of the Telecommunications (Interception) Act 1979.
There is presently no Tasmanian legislation that satisfies these requirements and consequently Tasmania Police is unable to remotely intercept telecommunications. The absence of requisite legislation severely inhibits the capability of police to prevent and investigate serious crimes. It also adversely impacts on the operational management of major incidents and high-risk situations such as those involving hostages, sieges, and suicide interventions, a vital component of which is the urgent and effective exchange of dialogue -
Mr LLEWELLYN - between the offender/subject and police negotiator usually by means of telecommunications.
At present, if Tasmania Police was to engage in telecommunications interception it would be in breach of the Telecommunications (Interception) Act 1979, and liable for prosecution. As a consequence, information vital to the successful and peaceful resolution of many high-risk situations, or which may be of considerable benefit in criminal or coronial proceedings, is regularly lost.
The use of telecommunications interception was imperative during the Port Arthur incident in April 1996. It enabled police to monitor critical telephone lines prior to and during the hostage negotiations. The interception was effected through the authority of the Australian Federal Police - AFP - and was only possible due to the special circumstances surrounding the incident. The assistance afforded by the AFP on that occasion was extraordinary and unprecedented in that ordinarily it can only be forthcoming in respect to matters of national security or breaches of the Commonwealth Crimes Act. The majority of barricaded persons incidents, sieges and suicide interventions occurring within the State are not of comparable magnitude and are unlikely to satisfy the criteria for future AFP assistance.
It is appropriate that I raise with members, the significant privacy and civil liberty implications associated with the use of telecommunications interception. It is understandable that these implications may be of concern to some members of the Tasmanian community. To allay these concerns, I intend to briefly address two important issues associated with telecommunications interception, namely:
the circumstances in which police would be permitted to apply for interception warrants; and
the safeguards and controls in place to ensure police do not abuse their entitlements or responsibilities under the proposed legislation.
In accordance with this legislation, police would only be entitled to apply for interception warrants for serious crimes defined under the Commonwealth Act as class 1 and class 2 offences, respectively. Class 1 offences include murder, kidnapping, and narcotics offences. Class 2 offences are those punishable by imprisonment for life or a minimum period of seven years that also involve loss of or serious risk to life, serious personal injury, drug trafficking, serious fraud, serious loss of revenue, or bribery or corruption of, or by, an officer of the Commonwealth, State or a Territory. Some other offences that involve substantial planning and organisation, money laundering or that are contrary to certain provisions of the Commonwealth Crimes Act, are also deemed class 2 offences.
To ensure that members of Tasmania Police do not abuse their interception entitlements and responsibilities, this legislation requires that extensive records pertaining to telecommunications interception be maintained by the Commissioner of Police, and that an independent inspecting authority of the State be empowered to monitor and report on the extent of compliance with this legislation. The safeguards and controls imposed under this legislation include a requirement that the commissioner must keep in the records of Tasmania Police each warrant issued and other associated instruments and records, and provide a copy of each warrant, or any instrument revoking a warrant, to the State Attorney-General as soon as practicable after such warrant or instrument is issued. The commissioner must also provide the Attorney-General with a written report about the use and communication of information obtained under each warrant within three months of such warrant being issued, and also provide a more comprehensive annual report concerning all interceptions, at the end of each financial year. On receipt of such warrant, instrument or repo rt, the Attorney-General is required to give a copy to the Commonwealth Attorney-General.
The legislation also appoints the State Ombudsman as the inspecting authority to meet the requirements of the Commonwealth act. The Ombudsman is responsible for inspecting the records of Tasmania Police to ascertain the extent of compliance by its members with the record keeping, confidentiality and other requirements of the legislation. The Ombudsman is required to report to the Attorney-General the results of each inspection, and must report on any contravention thereof.
This legislation is modelled on similar legislation already enacted in Western Australia, South Australia, New South Wales and Victoria. The police services of those States, and a number of other eligible agencies, have already been declared authorised agencies and have been conducting telecommunications interceptions for some years. The Queensland Government is presently considering enacting similar legislation in that State. The use of telecommunications -
Mrs Napier - Did you see he is presenting John's speech in a similar way to that which John did?
Mr DEPUTY SPEAKER - Order.
Mr Hidding - This is a beautifully written speech - word for word, all the way down to where it says 'where our Government is proud'. You're about to come to that. It's my speech.
Mr LLEWELLYN - Is it.
Mrs James - Your Government started it.
Mrs Napier - Actually, we thought you were trying to do a John.
Mr Hodgman - Nearly as good as Royal Shakespeare.
Mr Ken Bacon - Then we shouldn't have any problem with it.
Mr DEPUTY SPEAKER - Order. The members were taking a vote as to which was the most interesting presentation - yours or the former minister's. Please continue.
Mr LLEWELLYN - I see, right. That is of no interest to me, Mr Deputy Speaker.
Mr DEPUTY SPEAKER - I am sure it was a compliment, Sir. I am interested in what you are saying and I ask you to continue without interruption.
Mr LLEWELLYN - The use of telecommunications interception has proven to be an effective incident resolution and crime investigation tool in other States, and the intent of this legislation is supported by the Tasmanian community.
This legislation is a further example of this Government's commitment -
Mr Hidding - to law and order and our determination to -
Mr DEPUTY SPEAKER - Order, order.
Mr LLEWELLYN - to law and order, and of our determination to provide the people of Tasmania, and visitors to this State, with a safer community. And because the member for Lyons, shadow spokesman for police, has indicated that this is a very similar speech to the one he has in front of him, no doubt he is going to support it without any further ado and we will just get on with the job and pass the dashed thing.
I commend the bill to the House.
Mr HIDDING (Lyons) - Mr Speaker, I had not intended to draw any particular -
Mr Green - To be a smartypants.
Mr HIDDING - No - reference to the fact that the speech was the same. I probably have not been here long enough. I guess people would say, 'Oh, things like this happen'. I would have thought, quite seriously, that within the minister's office there would have been a little bit of imagination to realise that there is a bill on this Notice Paper at the moment, called bill No. 66 of 1998, standing in my name, which is this bill word for word with exactly the same clause notes and facts sheet and a second reading speech. You would have thought somebody would say, 'Well, let's just change the second reading speech. Let's just change one word', but no, it is exactly the same speech.
Mrs James - Well, you can't help but agree with it then, can you.
Mr HIDDING - I make no apology on this side of the House that I was going to use John Beswick's speech. But it is just a bit odd - and by interjection, with some amusement over here, we were, off the record, having some fun with it but the minister seems to have taken exception to that.
Mrs James - Unfortunately you're not the minister.
Mr Llewellyn - No, I never took exception to it.
Mr HIDDING - I will point out that I would have expected a little more imagination from that office. We do not disagree with one word you have said.
Mr Llewellyn - Good.
Mr HIDDING - Not a word. It was a very fine speech.
So for what is a serious matter on this side of the House, we want to make some comments. Firstly, I want to say that the only reason that a parliament could contemplate this kind of legislation is that either you are losing the fight against major crime or you had a very good police force. It is the second that encouraged me to place this bill on the Notice Paper when we became an opposition. It was one of the first bills tabled in this House because there was a degree of urgency to it. The degree of urgency was spoken of by the minister himself when he referred to the fact that - and I quote - 'information vital to the successful and peaceful resolution of many high-risk situations which may be of considerable benefit in criminal and coronial proceedings is regularly lost'. There are further words in his speech that carefully say that previous investigations might well have benefited by the ability to act under the terms of this legislation. If that is the case, surely when legislation is ready to go, surely when you have it ready to roll and when there are major unsolved crimes out there - and I think of one in particular in my electorate - then surely the Government would want to bring that bill on as soon as possible.
I say it is a little churlish of this Government not to pull my bill on in the last sitting when the Government was aware there was bipartisan support for this. They could have pulled it on when there was absolutely no government business and we were going home early. They could have pulled this bill on and for the last three, four or five months Tasmania Police would have had the benefit of this legislation to conduct these intercepts.
Having said that, the legislation is before us now and that is what we should focus on. As I said, there is legislation that you probably would want to bring into this House to increase the powers of police but you need to start with the premise that in Tasmania we have a particularly good police force with a proud history of performance in this State and that you can trust them with this kind of legislation. Notwithstanding that, there are many built-in measures that ought to allay the concerns of Tasmanians on civil liberty issues and the privacy issues that are associated with this requirement.
It is a nasty business to intercept somebody's private conversation. It is only a question of whether the business that you are investigating is a significantly more nasty business than that. The class 1 and class 2 offences here all are very serious crimes. So therefore when Tasmania Police feel that they need to intercept communications to advance their investigations, to move towards an arrest and successful prosecution of a criminal, then all of Tasmania ought to be behind this Parliament and Tasmania Police in being able to do so with appropriate mechanisms to give them comfort, as I said, on those privacy and civil liberty implications.
It seems to me that those classes of crimes, where we talk about serious fraud, serious loss of revenue, bribery or corruption of or by an officer of the Commonwealth, State or Territory - they are certainly major offences. The problem, however, with limiting it to these kinds of offences is that many people, having their house burgled and the contents destroyed - even to a value of $10 000-odd - would wish that the police had the power to intercept communications if they thought that they could actually catch that criminal and they would see that as more important than, for instance, an attempt of bribery or corruption of an officer of the Commonwealth, State or Territory. Obviously it is a heinous crime to try to bribe or corrupt an officer but you try to tell that to somebody who has just had their house trashed by some low-life and the police are powerless to catch those people. But I guess we need to draw the line somewhere so that it is not used for minor offences and, as I said, we need to find a balance in these matters.
I believe that the second reading speech of the minister covers all the issues in this. We, on this side of the House, are dedicated to providing the highest possible machinery and methods for the police to be able to be as good as or better than their counterparts elsewhere in Australia and certainly in the world.
I believe that as technology rolls out, especially mobile phones, it will be difficult for the law enforcement agencies to keep up with crime. There is technology becoming available now in connection with the 000 issue. Once it goes through its regulatory hoops Telstra will be able to pinpoint the location of a mobile phone, firstly, to which State it is being run from which is fairly useless to a police investigation, I suppose. But the next stage is to what area of the State that person might be calling from and the next stage is to what particular cell that person might be calling from. One wonders what the next iterations of those stages could be and you do not need to be Einstein to figure out that before long we could have satellites hovering above the person that we are trying to actually intercept and we could even describe the colour of the person's clothing. You certainly would not want to go that far, that would get into the realms of serious infraction of civil liberties but certainly -
Sitting suspended from 1 p.m. to 2.30 p.m.
Mr HIDDING - I have some concluding remarks to make on the legislation that was before us, the Telecommunications (Interception) Tasmanian Bill 1999 (No. 8). As there is an important piece of legislation about to become before this House I will undertake to conclude those remarks in the Committee stage of the bill and conclude my contribution at this point.
Mr COX (Bass) - I do not know whether the minister wants to advise his people that he is back on this bill.
Mr Llewellyn - I do not either.
Mr COX - They are back in, we took enough time making that point so we are right.
The reason I support this is -
Mr Hidding - Could your minister put it up?
Mr COX - Well, that is basically true. It would be fair to say that this bill is very similar to the former minister, Mr Beswick's, and at that stage I did intend to support the bill and obviously I would certainly be doing so now.
Initially there were some minor concerns. Those have been eased. I really do think that this is necessary.
Tasmania is one of the last States to be authorised to conduct telecommunications intercepts and I suppose what this means is that it actually now mirrors Commonwealth requirements. I am sure that many of the police would be able to tell you horror stories of when they tried to cooperate between different States throughout this country.
I have some recollection of a few years back when - I will tell the story one day - police tried to tape conversations and the difficulty they had in trying to go through that process and how difficult it was. So, I think this is great. They have finally caught up.
Technology obviously moved faster than the current legislation and it is good to see that the legislation is now coming into line with what is necessary. I think digital mobiles started out being a problem and then they became increasingly difficult to monitor.
It is my firm belief that the police certainly need, and deserve, the most up-to-date methods that are available.
I think it would be fair to say that it was not that long ago that the equipment that the police used was probably being monitored by half the community.
Mr Hidding - Everybody.
Mr COX - Except you and me, Sir. But there were. The people who were out and about had better equipment.
Mr Hidding - I received a telephone call from an electrical provider in Launceston who said 'You are responsible for cutting half of my business'. They are bringing back all the police scanners.
Mr COX - I must admit when that came forward I received a few complaints too and there were one or two names - I can see the Deputy Commissioner smiling - that would be familiar to him in Launceston and they are most annoyed they have nothing to do of an evening now. They have gone to another activity but they are too old to do anything illegal.
Other than to say that I do support this, I supported it before, I just wanted briefly to lend my voice to the minister and say that I think this is a good thing. I think once it comes in as legislation it will probably be something that will ease at least one of the frustrations that the police force have.
Ms PUTT (Denison) - I do not wish to speak for long on this either. I understand the need that the police have to be able to intercept mobile phone calls and the like. I simply wanted to ask one question and make one point in respect to this.
The question is it is not clear to me having had a quick look at the second reading speech as to whether this applies to email and the Internet. They are means of telecommunications so I am not entirely sure -
Mr Cox - So are you asking if they can intercept?
Ms PUTT - whether it is an intercept of those sorts of messages or we are simply talking about listening in on mobile phone calls and that sort of thing.
The second thing I want to do is make a point about accountability. I do not think that the accountability mechanism in this legislation is as strong or as adequate as perhaps it ought to be. I know that there is a report to the Attorney-General involved but in the listening devices legislation there is a report to the Parliament and I think it is quite different to a report to a government, where the rest of the Parliament never gets to know what is going on, to actually have a report that comes to the Parliament which says something along the lines there were six permissions given in the last year for the use of listening devices.
I would prefer to see that accountability continued here in this legislation to the Parliament by way of report obviously without naming the particular operations or persons being kept under surveillance. But there has been a way to get around that with the listening devices legislation and I do not see why we are now changing that accountability reporting device to take it to somewhere where no one other than the Attorney-General will ever actually know what is occurring.
I think it is important for Parliament to be able to keep a handle on the level of surveillance that is occurring in the community just in case things do get out of hand and that, I would imagine, is the reason why we have had the provision with listening devices. I would prefer to see that we kept that type of accountability mechanism in this legislation.
Mr LLEWELLYN (Lyons - Minister for Police and Public Safety) - I thank the House for the support. As has been pointed out before, this is model legislation that has been framed around all of Australia and in fact already adopted in most of the States except Queensland and a process is going on similar to what is happening here right now, I understand, in Queensland. It is a matter that has been pretty well canvassed nationally.
On the issues that the member for Denison, Ms Putt, raises, I can understand her concern about those but on the question of the email and Internet, I guess this is legislation that enables interception of a physical circuit, whether it be telephone data or otherwise and therefore if data traffic was travelling over that particular circuit it could be demodulated and identified. So to that extent it would cover the email and Internet situation but only as it relates to the actual way of intercepting the particular circuit.
With regard to the accountability, there is a process of accountability that goes wider than the actual Attorney-General in this State. There is an arrangement that mandates an involvement with the Federal Attorney-General as well and there are other provisions that are in there that are much tighter than any other system of this sort. I think really that this is an issue obviously from a civil libertarian point of view that has been very well covered in the fact that there are checks and balances at each stage through the process and while the actual figures - I would not have any concern about Parliament being advised as to the number of intercepts and those sorts of things that occur -
Ms Putt - That is what happens with the listening devices: the reports that we see are that there were six permits to listen issued this year, or something.
Mr LLEWELLYN - Yes, and that may well come out through the report to Parliament by the Ombudsman or whoever, so that is probably going to be available to us, but as to the detail of what went on in the intercept, I think that -
Ms Putt - Oh no, I didn't want that.
Mr LLEWELLYN - No. I think that probably your fears are allayed to some extent because of the fact that the information of what has actually happened over a period of time will be available if you go through the processes. I thank the House for their cooperation.
Bill read the second time and taken through the remaining stages.