Barker Rick: Telecommunications (Interception Capability) Bill — Second Reading 
Barker Rick: Telecommunications (Interception Capability) Bill — Second Reading 
[Volume:616;Page:12265] 
Hon RICK BARKER (Associate Minister of Justice) 
: 
 I move  
That the Telecommunications (Interception Capability) Bill be now read a second time 
. This has been reported back from the Law and Order Committee which recommends that it be passed with amendments as shown. I would like to thank the select committee for the work it has done on this bill. The amendments recommended by the committee will improve the operation of the legislation. 
This bill is necessary to ensure that law enforcement and national security capability are not seriously eroded by changes in technology. The bill places a legislative obligation on telecommunication network operators to be technically able to intercept telecommunications going over that network when authorised by a warrant or other lawful authority. The bill also creates a legislative “duty to assist” on all telecommunication network operators and service providers. This means they must provide reasonable assistance to the police the Government Communications Security Bureau and the Security Intelligence Service when intercepting telecommunications within their technical capability and on a cost-recovery basis. The bill does not change or extend in any way the existing powers of the police the Government Communications Security Bureau or the Security Intelligence Service to intercept communications. If the relevant agency has lawful authority to intercept a telecommunication technological barriers should not prevent it from doing so. 
I shall now focus on some of the amendments to the bill proposed as a result of the select committee process. Concern was raised in some submissions that the bill required each network and service to have interception capability installed within it. This would impact on costs making them unnecessarily high when the same interception capability could be achieved by an external technology used on an “as needed” basis. The intention of the bill was not to require interception capability to be installed within all networks and services. The bill was intended to set out broadly what is required to have interception capability and to leave it to the network operator to decide how best to achieve this within the network. The committee has therefore recommended an amendment to the bill to clarify that the interception capability does not need to be installed within each element of the network or service to comply with the requirements of the bill. 
This freedom to choose is enforced in the purpose clause which states that one of the purposes of the Act is to ensure network operators and service providers have the freedom to choose design features and specifications appropriate for their own purposes. 
The committee also recommended some amendments around clause 8 which sets out when the duty to have an interception capability is complied with. These include recognising that in some cases the network operator not the surveillance agency will carry out the interception. In this situation interception is complete when the information is passed on to the surveillance agency. 
The committee also recommended further limitations to be placed on the requirement to decrypt. This limitation is that a network operator will not be required to decrypt communications for products that it simply on-sells on behalf of the manufacturer and that the customer would be able to purchase from a retail outlet. To require decryption in this situation would place the network operator at a commercial disadvantage as he or she would not be able to sell a particular product if he or she did not have the key but the customer could go and buy exactly the same product from a shop and then use it over the network operator’s network. 
The committee also recommended two changes in respect of the “duty to assist” provision. The first was as with clause 8 to recognise that in some cases the network operator not the surveillance agency will carry out the interception. The second was to lower the standard required to comply with the duty to assist. This means that network operators and service providers would have to take all reasonable steps that are necessary in respect of interception. In response to a submission from a network operator the committee recommended changing the time required for a surveillance agency to pay an invoice from 2 months to 1 month. This has been agreed. In light of the comments made by the Regulations Review Committee the committee has recommended that the regulation-making power in the bill be amended. These amendments include removing two regulation-making powers that were very general and adding a regulation-making power to allow regulations for matters that are necessary for the bill’s administration or necessary to give its full effect. 
The committee also recommended removing part of the clause that stated that the failure to comply with certain requirements did not affect the validity of any regulations made. There is ability for the Minister not to comply with those requirements if urgency in the public interest requires it. In those circumstances the committee agreed that this clause should be deleted. 
The committee has also recommended amendments to some of the definitions contained in the bill to enable the bill to be given full effect. The committee also examined the issue of costs. A phased implementation process is included in the bill to provide the industry with the opportunity to implement the necessary changes in a way that is cost efficient. The Government will pay for the provision of interception capability for fixed and mobile voice networks that were in operation on 12 November 2002. Interception capability needs to be implemented within 18 months from when the bill comes into force. The cost is estimated to be $3 million. 
Network operators will meet the cost of providing interception capability for Internet and email services with a 5-year implementation period from the date of enactment. It is estimated that this will cost the industry $12 million. The committee received submissions from network operators stating that the costs were estimated to be much higher than this. Because of this variance further consultation work took place with these network operators. The increased costs were based on operators perceiving that they would be required to have interception capability installed with all networks and services to comply with the requirements in the bill. As I said earlier this is not the intention of the bill which is to give each network operator the freedom to decide how interception capability is best achieved within its system. 
Once this was clarified the revised cost estimate was put within the range of $10 million to $13 million making the original estimate of $12 million still accurate. Amendments have been made to the bill to ensure that the intention of the legislation in this respect is clear. 
I have also tabled a Supplementary Order Paper that makes three minor amendments. The first is a change to the definition of “interception warrant” to take into account the passage of the Crimes Amendment Act which was passed in October last year. The second amendment is to ensure that all legislative authorities to intercept are covered in the definition of “other lawful interception authority”. The final amendment is a drafting change to correct a wrong cross-reference. I commend this bill to the House.