6 August 2004

Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No. 2) 2004

Below is a copy of EFA's submission dated 6 August 2004 to the Senate Legal & Constitutional Legislation Committee's inquiry into the provisions of the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No. 2) 2004.



Firstly, we express our serious concern regarding the exceedingly short time frame (one week) the Committee was given to inquire into the provisions of this lengthy and complex Bill and the resultant twenty-four hour period available to members of the public for preparation and lodgement of submissions. EFA considers that Senate Committees serve an important and essential function in reviewing proposed legislation and that Committee members, their staff and the public should be given a reasonable period of time to consider proposed legislation. One week is not, in our view, reasonable. It is also not adequate to enable the public to have faith in the Committee system and processes.

Obviously this submission has been prepared in one day. EFA was only able to prepare this submission so quickly because we had analysed an exposure draft earlier this year.

In April 2004, EFA sent a submission to the Attorney-General's Department in response to their request for comments on the Exposure Draft of the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill 2004 and associated Explanatory Notes. A copy of that submission is attached and is referred to herein as our "April submission".

Many of the numerous issues and concerns raised in our April submission were addressed and resolved to EFA's satisfaction by the Attorney-General's Dept prior to introduction of the proposed legislation into Parliament on 24 June 2004. The Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No. 2) 2004 ("the Bill"), introduced into Parliament on 4 August, appears to be the same as the June Bill (apart from the removal of provisions concerning suicide material, which are now in another Bill).

While the majority of comments in our April submission are not relevant to the Bill, we have attached a copy of that submission so that if there are any proposals to revert to provisions similar to those in the April Exposure Draft, the Committee will have information readily available regarding EFA's reasons for objecting to the previously proposed provisions. (Clause numbers referred to in our April submission refer to the numbers in the Exposure Draft which are slightly different from those in the Bill.)

The following provisions in the Exposure Draft were changed in a manner that appears to satisfactorily resolve the concerns raised by EFA:

  • ISP Liability, Internet Users' Rights and Criminal Justice
    - lack of necessary defences for ISPs (resolved by new section 474.13)
  • Definitions of Types of Material
    - requirement to take into account the same matters (merit, character of material, etc) as in the C'th Classification Act (resolved by new section 473.4).
  • Using a carriage service for child pornography/abuse material s474.19/22 (was 474.17/20)
    - clarification of element of intent (resolved by amended paras (1)(a) and (2)).

In the remainder of this submission we discuss provisions of the Bill that we remain concerned about, both those that have not been changed since the Exposure Draft, and those that have been improved but not sufficiently in our view.

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Using a carriage service to menace, harass or cause offence 474.17 (was 474.16)

This offence replaces s85ZE of the Crimes Act 1914 and significantly broadens same. EFA is strongly opposed to the proposed changes to the existing offence.

Our April submission outlines our interpretation of the proposed changes, which we believe to be correct following a telephone discussion with representatives of the A-G's Department, followed by details of our concerns as to the effect of these changes.

Since the Exposure Draft, changes including the addition of two new sections are a significant improvement and resolve some aspects of the concerns raised in our April submission. These new sections are:

  • Section 473.4 "Determining whether material is offensive" containing provisions suggested in our April submission; and
  • Section 474.13 "Use of a carriage service" which should eliminate the previous high potential for ISPs to be menaced (by legislation) into becoming the nation's censors and conduct police which we believe would have resulted in due process not being available to 'accused' persons.

However, we remain opposed to the proposed new offence because:

  • unlike existing s85ZE of the Crimes Act, the proposed new offence enables a person to be found guilty even when no person has in fact been menaced, or harassed, or been caused offence; and

  • unlike existing s85ZE(1)(b), the proposed offence applies to all 'Internet content', i.e. including web pages, etc. The existing offence re offensive use excludes 'Internet content' and therefore applies only to 'ordinary email' (which is excluded from the definition of 'Internet content' in the Broadcasting Services Act 1992 ("BSA")). This situation was explictly intended by the government in 1999 and is a complete reversal of that policy position.

EFA is implacably opposed to any offence the same as or similar to s85ZE(1)(b) being applicable to "Internet content" as defined in the BSA. The existing offence already enables prosecution of a person who makes telephone call/s or sends email message/s to another person that reasonable persons would regard in all the circumstances as offensive. Existing s85ZE(1)(b) serves a legitimate purpose and its coverage must not be extended to Internet content.

EFA is also strongly opposed to changes to the existing provisions of s85ZE in relation to menacing or harassing use. The existing offence already enables prosecution of people who menace or harass another person. As discussed in our April submission, obviously the aim of the proposed offence is to facilitate criminal prosecution of Internet users, and especially political activists, in relation to speech and conduct that does not menace or harass another person, and that also does not promote, instruct or incite in matters of violence or crime. As set out in our April submission, speech that does do so can already be dealt with under existing laws.

EFA is also opposed to the penalty for this offence. The penalty for the existing narrower offence is one year, in the Exposure Draft it was to be increased to two years (which EFA did not oppose), but in the Bill it has been increased to three years. EFA suspects it is not mere coincidence that three years is also the period applicable to a 'relevant offence' in the Surveillance Devices Bill (No. 2) 2004 for which police will be able to obtain a surveillance device warrant (and in some circumstances use such devices without a warrant). EFA does not believe that surveillance device warrants should be available to LEAs investigating such broadly defined suspected offences as those in proposed s474.17. Questions arise as to whether the overall objective is to enable LEAs to covertly surveil political activists without justifiable cause. The penalty should be no more than two years.

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Interception devices 474.4 (was 474.6)

Although the majority of comments in our April submission related to the first TI Bill this year (which is different from the latest TI Bill), we remain of the view that the definition of 'interception device' is insufficiently narrowly tailored to avoid catching equipment that should not be illegal to sell, possess, etc.

In addition, the related Crimes Act Regulations which are to continue to apply, and may be relevant to the above concern, refer to ss6(3) of the Telecommunications (Interception) Act 1979. However, there is no ss6(3) of that Act.

Further information in relation to the above matters and need for amendment is contained in our April submission under the heading "474.6 Interception devices".

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Wrongful delivery of communications 474.5 (was 474.7)

Para (2) of this section was not in the Exposure Draft and appears to have been added to resolve an issue raised in our April submission. While the addition of this exception from criminal responsibility is a significant improvement and resolves part of the problem, we remain concerned that the offence is insufficiently narrowly defined and could catch conduct that should not be a criminal offence. For example, if <[email protected]> leaves the company and the employer redirects mail to that person to <[email protected]> it appears the employer would be in breach of the law if the employer is not the person operating the carriage service, unless the employer can obtain John Smith's consent to the redirection. An employer would not always be able to obtain consent depending, for example, on the circumstances of a person's termination of employment.

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Definition of 'Carriage Service'

The comments in our April submission concerning whether or not the offences are intended to apply to the use of a private (not public) network still apply. We have not had time to read the latest Explanatory Memorandum to ascertain whether a related explanatory note has been added, as suggested, or not.

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Possessing, controlling, producing, supplying or obtaining child pornography material for use through a carriage service 474.20 (was 474.18)

We remain concerned (see April submission) regarding whether or not the rules of double jeopardy apply in relation to this offence or whether a person could be prosecuted for possession with intent of use in commission of an offence under C'th law and also simple possession under State/Territory law. If the rules of double jeopardy do not apply to such a situation, EFA is opposed to s474.20 and the similar s474.23.

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Defences in respect of child pornography/abuse material s474.21/24 (was 474.19/22)

These two sections have been significantly revised since the Exposure Draft and we have not had the opportunity to closely analyse the differences. Our previous major concern regarding the lack of defence for ISPs has been resolved by new Section 474.13. Other revisions to these two sections also appear, generally speaking, to probably be an improvement.

We remain of the view that a defence should be available for persons reporting spam containing illegal material to the Australian Communications Authority ("ACA"). Alternatively if people should not report such spam to the ACA, this should be made publicly known by the ACA. This may be covered by s474.21(2) but if it is then the question arises as to why there is a separate defence for reporting material to the Australian Broadcasting Authority (s474.21(4)).

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While the Bill is a significant improvement over the Exposure Draft, further amendments are necessary. Proposed Section 474.17 should be changed to the same as existing s85ZE and amendments made to other sections to address matters discussed above.

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About EFA

Electronic Frontiers Australia Inc. ("EFA") is a non-profit national organisation representing Internet users concerned with on-line rights and freedoms. EFA was established in January 1994 and incorporated under the Associations Incorporation Act (S.A.) in May 1994.

EFA is independent of government and commerce, and is funded by membership subscriptions and donations from individuals and organisations with an altruistic interest in promoting online civil liberties. EFA members and supporters come from all parts of Australia and from diverse backgrounds.

Our major objectives are to protect and promote the civil liberties of users of computer based communications systems (such as the Internet) and of those affected by their use and to educate the community at large about the social, political and civil liberties issues involved in the use of computer based communications systems.

EFA policy formulation, decision making and oversight of organisational activities are the responsibility of the EFA Board of Management. The ten elected Board Members act in a voluntary capacity; they are not remunerated for time spent on EFA activities. The role of Executive Director was established in 1999 and reports to the Board.

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