Telecommunications and Other Legislation Amendment Bill 2025
Ms CLUTTERHAM (Sturt) (17:35): I wish to begin this speech by acknowledging the outstanding work of the individual Australians who work for our security agencies. Often faced with challenging, complex and disturbing situations, these Australians turn up to work every day in order to serve their fellow countrymen and countrywomen by taking steps to keep us safe, to investigate matters and to ensure that perpetrators of horrific offences can be brought to justice and that the victims of these offences feel heard and can try to move forward with their lives in the knowledge that action is being taken to prevent the same things happening to others.
This bill, the Telecommunications and Other Legislation Amendment Bill 2025, sets forth a number of very technical amendments that recognise that we are in an era of rapid and constantly changing and evolving technological and cyber development and that law enforcement agencies are being expected to operate in this challenging environment whilst remaining charged with the very serious obligation to protect Australians.
More specifically, this bill makes technical amendments to the Surveillance Devices Act 2004, the Telecommunications (Interception and Access) Act 1979 and the Crimes Act 1914. These amendments are required to clarify or correct provisions in Australia's electronic surveillance and law enforcement frameworks, particularly when they have been rendered less effective due to technological change.
The amendments are set out in the various schedules to the bill. Firstly, schedule 1 sets out the proposed amendments to the Surveillance Devices Act 2004 and the Telecommunications (Interception and Access) Act 1979. The amendments have the effect of enabling agencies and prosecutors to disclose information obtained under network activity warrants for the purposes of complying with their disclosure obligations in a prosecution for a relevant offence.
For clarity, network activity warrants are used for the collection of intelligence that relates to criminal networks operating online. Without these amendments, the current disclosure arrangements would remain in place. This current regime prohibits disclosure of information obtained pursuant to a network activity warrant, which not only limits the prosecution but presents an access-to-justice issue in that individuals may be denied the opportunity to receive a fair trial.
This is because those individuals in relation to whom information is obtained pursuant to a network activity warrant do not currently have access to it, which is unfair if the evidence and information obtained through these warrants may assist those people in their own defence. So these changes promote the Commonwealth's compliance with the duty of disclosure that it owes to courts in relation to network activity warrant information.
Quite understandably and quite rightly, disclosure of this information will remain limited and subject to strict safeguards, but these amendments deliver the required clarity so that the Commonwealth can provide necessary information to facilitate the defensible prosecution of serious criminal activity. Then we have the amendments set out in schedule 2, which relate to the Telecommunications (Interception and Access) Act 1979.
This amendment seeks to transfer the regulatory role of the Communications Access Coordinator from the Secretary of the Attorney-General's Department to the Secretary of the Department of Home Affairs. It does this to reflect postelection machinery-of-government changes. The Communications Access Coordinator is responsible for liaising between state and Commonwealth security and law enforcement agencies, the Commonwealth telecommunications regulator and the telecommunications industry.
It is a function that also supports industry to understand and comply with relevant interception capability obligations under the Telecommunications (Interception and Access) Act 1979. Moving to schedule 3, these amendments are technical in nature and apply to that same act to ensure that the framework for testing and developing technologies and interception capabilities can operate in the manner that parliament intended.
They are designed to ensure that appropriate safeguards are in place to facilitate the proper development and testing of new capabilities by intelligence and law enforcement agencies. Specifically, the Attorney-General will be empowered to authorise agencies to access communications that are stored in like circumstances where they would have been authorised to intercept these communications when they were live, but only for the purpose of developing and testing technologies and interception capabilities.
The difference this amendment makes is that currently only live communications can be used by agencies for testing and development purposes. Stored communications may pass over the telecommunications system alongside live communications. At the point of interception, these stored communications are indistinguishable from live communications—for example, when emails are synced between two devices at the same time as messages are being transmitted between them.
This crossover is occurring because technological advancements are facilitating it. That being the case in these circumstances, and because of this indistinguishability, access to stored communications cannot be avoided. That is why agencies require authorisation to access both live communications and stored communications for testing and development purposes.
Stored communications that are accessed for this purpose will follow authorisation from the Attorney-General and can be used only for that purpose and for no other purpose. Importantly, they cannot be used for intelligence purposes, investigative purposes or anything else. As for this ring fenced purpose, stored communications that are accessed pursuant to this schedule 3 amendment will be treated no differently to live communications.
Moving to schedule 4 to the bill, this schedule operates to amend the international production order framework in the Telecommunications (Interception and Access) Act 1979, with the motivation for the amendment being to give effect to the original intent of this regime. The international production order framework in that act is found in schedule 1. It is a framework that permits Australia to enter into agreements with other countries to share electronic information for the purposes of countering serious crime.
An example is the Australia-US data access agreement signed in 2021, which facilitates Australian and United States law enforcement and national security agencies to obtain orders for data held by communication service providers in the partner nation without the need for separate review and authorisation. These arrangements operate to improve the overall effectiveness of Australian and United States investigations and prosecutions of serious crimes.
An international production order can be issued for the purpose of enforcing criminal law to monitor persons subject to supervisory orders and for national security reasons. Information that is covered by an international production order includes live and stored communications and telecommunications data. Examples include files uploaded to a storage or backup service, emails and chat history, in addition to the related information to those communications.
International production orders are an important tool in the toolbox that Australia has at its disposal to prosecute serious crimes. The amendments proposed by schedule 4 to this bill will provide certainty that interception orders issued to Australian law enforcement and national security agencies may be used to obtain prospective content data from communications providers in a country with which Australia has a designated international agreement, regardless of the technical method by which that prospective data is sent to the agency.
In plain language, these amendments will make the international production order regime more technology neutral, ensuring that Australian agencies' use of these powers is available to request access to communications held by a US communications provider now and into the future, regardless of the technical methods that those providers use to access communications, all subject to the current safeguards in the framework.
Finally, there is schedule 5 to the bill. This schedule proposes amendments to the Crimes Act 1914 to clarify and strengthen safeguards in the controlled operations provisions framework. Pursuant to section 15GD of the Crimes Act: A controlled operation is an operation that: (a) involves the participation of law enforcement officers; and (b) is carried out for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious Commonwealth offence or a serious State offence that has a federal aspect; and (c) may involve a law enforcement officer or other person in conduct that would, apart from section 15HA, constitute a Commonwealth offence or an offence against a law of a State or Territory.
Controlled operations might include infiltrating serious and organised crime groups, identifying and rescuing victims of abuse or gathering evidence for the prosecution of serious offences, including in relation to online sexual abuse syndicates. Plainly, controlled operations involve serious risks and must therefore be appropriately safeguarded. The nature and development of the online world have meant the prevalence of the crimes committed while facilitated online is increasing.
Perpetrators can hide on the internet, and they do so in sophisticated manners, making it difficult to gather information and difficult to assess the risks when determining whether a controlled operation should proceed or be varied. Authorising officers currently have insufficient guidelines as to the extent to which they are expected to foresee potential risks and not authorise or vary a controlled operation in the context of these risks.
The amendments proposed by schedule 5 oblige authorising officers to consider the direct and reasonably foreseeable consequences of controlled conduct when authorising or burying a controlled operation instead of any conduct of third parties, as was the original intent of these thresholds. Critically, the proposed amendments set out in schedule 5 provide clearer legal protections for officers who are participating in undercover operations designed to disrupt and take down sexual abuse syndicates.
A sobering statistic is that, in the 2023-2024 financial year alone, reports of online child exploitation to the Australian Centre to Counter Child Exploitation increased by 45 per cent from the previous year. So officers doing this challenging and sometimes horrific work need to be able to do it without fear of personal liability. Full and fearless investigations are the only way these sorts of crimes can be investigated and the only way mitigation strategies to reduce or eliminate the further perpetration of these crimes can be implemented.
Therefore, the proposed framework will retain the appropriate carve-outs for liability protections where officers engage in otherwise illegal behaviour not pursuant to an approved control operation and where their conduct is likely to cause the death or serious injury of a person or where their conduct would involve the commission of a sexual offence against a person.
Without these amendments, law enforcement agencies will lack the confidence and agency to authorise and deploy controlled operations in online spaces, particularly as they relate to the investigation and disruption of child sexual abuse syndicates. In commending this bill to the House, I finish by again expressing my deepest gratitude to those who do this work in service to their fellow Australians.