Department of Communications on Internet Filtering

estimates

Budget Estimates - Thursday 30 May 2013 - Environment and Communications Committee

CHAIR: Senator Conroy, Senator Ludlam has the call.

Senator LUDLAM: It is an interesting line of questioning, and we will pursue it later tonight, all being well. Mr Clarke, can you just give us an overview, because I have been putting these questions around the building all week to different agencies? I understand that the department has taken carriage of the issue ASIC has begun using section 313 notices to compel ISPs to block certain websites. Can I direct some questions on this matter to you?

Mr Clarke : Yes, Senator. I was present last night when you sought advice from the ACMA on this. Mr Rizvi will be able to assist you.

Senator LUDLAM: Okay. Firstly, I understand that the department convened a meeting, and I will come to the details of that in a moment. But, firstly, can you describe for us the degree to which the department is aware of the extent of the use of section 313 of the Telecommunications Act?

Senator Conroy: Prior to the recent ASIC issue or since?

Senator LUDLAM: No, overall.

Senator Conroy: Obviously right now they have gone and investigated. I think it is just germane to understand the difference between what has happened since ASIC and what was happening previously. That is the only reason I raise that issue, Senator.

Senator LUDLAM: The minister is being helpful. I am trying to be clear on the present extent of the use of these notices by various agencies across the whole government to block websites. I am aware that the Federal Police are using these, because the minister announced they would start doing that last year. I am aware that ASIC are using these notices. Who else is, to the department's knowledge?

Mr Rizvi : As you mentioned, we held a meeting between a range of agencies-law enforcement agencies, regulatory agencies and agencies involved in the collection of revenue-to discuss this matter recently. As a result of that meeting, three agencies identified that they have previously used section 313 to request blocking of certain websites. Two of the agencies you have already mentioned, which are the Australian Federal Police and ASIC. There has been a third agency that has used that power for blocking purposes once in the Attorney-General's portfolio.

Senator LUDLAM: Can you just tell us who it is and save a bit of time? Who is the third agency?

Mr Rizvi : It was in the Attorney-General's portfolio.

Senator Conroy: You would have to put that question to the Attorney-General.

Senator LUDLAM: No. The department has taken carriage of the issue. Who is the third agency?

Senator Conroy: No. We have indicated which department, and if you would like further information you should raise it with the AG's.

Senator LUDLAM: I am not sure at all on the basis you are withholding that information.

Senator Conroy: We have indicated that it is the AG's Department, and suggest you take the matter up with the AG's.

Senator LUDLAM: The AG's were on last night. I am not even sure that they are still at the table. So why not just disclose who it is?

Senator Conroy: It is a matter for the Attorney-General's Department.

Senator BIRMINGHAM: Mr Rizvi has been able to name the other two agencies, so why not the third?

Senator Conroy: I am simply saying that, if you would like further information about the AG's department, raise it with the AG.

Senator BIRMINGHAM: Why can you name two but not three?

CHAIR: Order! Senator Birmingham.

Senator LUDLAM: It is a reasonable question.

Senator Conroy: If the AG's are still at the table-

Senator LUDLAM: The Federal Police and ASIC are not at the table here either. You have been happy to acknowledge them.

Senator Conroy: And we have indicated that the AG's Department have a role in this. On matters to do with what their role is, we are simply saying to take it up with the AG's.

Senator LUDLAM: I think this is obfuscation for the sake of it.

Senator Conroy: It is not a conspiracy, Senator Ludlam. You can go and ask them the question.

Senator LUDLAM: I did not say that it was a conspiracy. It is obfuscation for the sake of it.

Senator Conroy: You can simply ask the AG's the question.

Senator LUDLAM: Could you tell us who attended the meeting?

Mr Rizvi : Yes, Senator. The meeting was attended by the Australian Taxation Office, the Department of Immigration and Citizenship, the Australian Competition and Consumer Commission, the Australian Communications and Media Authority, the Australian Human Rights Commission, the Australian Customs and Border Protection Service, the Australian Crime Commission, the Australian Federal Police, the Australian Securities and Investment Commission and the Attorney-General's Department.

Senator LUDLAM: All right. ASIO did not attend or no other agencies of the security establishment? They were either in the room or they were not in the room.

Senator BIRMINGHAM: I think everyone in the room already knows the answer, but I also know the answer you are about to get, Senator Ludlam.

Mr Rizvi : ASIO was present.

Senator LUDLAM: Thanks!

CHAIR: Ah, see?

Senator LUDLAM: Mr Rizvi, is there a reason why you did not acknowledge their presence in the first list that you gave me just 30 seconds ago?

Senator Conroy: I was simply clarifying with Mr Rizvi the answer, and we have provided it.

Senator LUDLAM: After I had to name them it was provided.

Senator Conroy: I clarified with Mr Rizvi and we answered the question.

Senator LUDLAM: That is really misleading. How many other agencies do I have to name to see if they were also there. Mr Rizvi, have you provided us now with a full and complete list of the attendance of that meeting?

Mr Rizvi : Yes.

Senator LUDLAM: Thank you. Who provided secretariat support, or did the department host and convene this gathering?

Mr Rizvi : The meeting was hosted at the department.

Senator LUDLAM: Who convened the meeting, specifically? At what level?

Mr Rizvi : I chaired the meeting.

Senator LUDLAM: When did it occur?

Senator Conroy: After the discussions around ASIC.

Senator LUDLAM: You may have given us the dates last night, actually. Was it 22 May?

Mr Rizvi : It was 22 May.

Senator LUDLAM: What was on the agenda?

Mr Rizvi : The agenda was to discuss the use of section 313 for blocking purposes. It was to discuss what agencies had or had not used that power in the past, the approach taken by the agencies that had used the power and to discuss possible means of improving management of the use of section 313 for blocking purposes.

Senator LUDLAM: Are the two agencies that you have named and the one that you have alluded to but refused to name the only agencies, to your knowledge, who have ever used section 313 in this way?

Mr Rizvi : As far as we are aware there are only three agencies that have used section 313 for blocking purposes.

Senator LUDLAM: On how many occasions has ASIC used these notices to knock out content?

Mr Rizvi : ASIC advised that they have used it on 10 occasions, and on eight of those occasions they issued a media release on the matter.

Senator Conroy: Including in this particular case.

Senator LUDLAM: I think you alluded to that the other night as well, Minister, that they sometimes put press statements out.

Senator Conroy: No, I think I read the press release out indicating that they said they had done it-

Senator LUDLAM: It is a bit stronger than an allusion.

Senator Conroy: and I indicated the date, which was prior to when you believed that they had notified publicly that they were. Is that correct? I think that was the discussion we had the other night.

Senator LUDLAM: I am not actually conceding the point but, yes, we did have that discussion the other night. I am just not in the habit of checking ASIC's press statements online everyday. But let us move on, because time is a bit short.

Senator Conroy: No, but it goes to the claim that ASIC hid the fact that they did it. They put out a press statement saying that they had done it. It hardly could be described as ‘hiding it'.

Senator LUDLAM: I am not sure that I have described it as ‘hiding it', but let us move on.

Senator Conroy: No, about the general commentary.

Senator LUDLAM: How many agencies are actually duly authorised to use notices in this way? Who else can issue these?

Mr Rizvi : The legislation does not specify any particular agency.

Senator LUDLAM: That is true.

Mr Rizvi : The legislation indicates that carriers and carriage service providers are required to cooperate with agencies that have responsibilities for enforcing the criminal law, and laws imposing pecuniary penalties, protecting the public revenue and safeguarding national security.

Senator LUDLAM: Are you able to provide us with a list of all the agencies that that would include? I would understand that to include, for example, state policing and anticorruption authorities as well, for example, and not just federal agencies.

Mr Rizvi : Yes, it could cover state authorities that have those responsibilities.

Senator LUDLAM: That is dozens and dozens of agencies, is it not?

Mr Rizvi : I cannot be specific about the numbers.

Senator LUDLAM: Could you for us, on notice? Since the department has taken carriage of this issue, if I ask you how many agencies and which agencies are authorised to knock out content online with or without an accompanying press statement, of their own volition, against no list, no criteria, no categories and no accountability, could you provide us with a list of the agencies who are able to do that?

Mr Rizvi : We would have to take that on notice.

Senator LUDLAM: That would be good. I take it from the list that you did not have any of the state policing agencies or authorities at the table at your meeting on 22 May. How confident are you that state and territory agencies are not using these notices in the same way?

Mr Rizvi : At the meeting we discussed with those agencies their interactions with state counterparts and asked the question: are they aware of any state agencies that have used section 313 for blocking purposes? None of the agencies in the room indicated an awareness of any state agencies ever having used it for blocking purposes.

Senator LUDLAM: So people do not know that it is happening. Does that give you comfort that it is not actually happening?

Mr Rizvi : I am not sure that I can talk about 'comfort'; I can only talk about what I know.

Senator LUDLAM: We do not know if other agencies are using them. The question was put at this meeting and nobody knew if anybody else was doing so.

Mr Rizvi : None of the agencies in the room were aware of any state agency having ever used section 313 for blocking purposes.

Senator LUDLAM: That does not mean that it is not going on, but there was no awareness of visibility at the time that it was not. What conclusions or outcomes are there from this meeting? How is the situation going to be resolved, or was it concluded that there even is a situation that needs to be resolved?

Mr Rizvi : The minister has requested advice on options to improve transparency and accountability in this area. We are working with these agencies to develop that advice.

Senator LUDLAM: Is that a tacit acknowledgement that there is no accountability or transparency at the moment?

Mr Rizvi : No, I do not believe that that conclusion can be drawn.

Senator LUDLAM: You cannot tell me another agency that is issuing these things.

Senator Conroy: I think that ASIC issuing a press release saying they have done at is a reasonable degree of transparency.

Senator LUDLAM: You will not even tell me what other agency is issuing them.

Senator Conroy: I said that you can ask the Attorney-General's Department.

Senator LUDLAM: What deadline has the department been given to come up with some accountability or transparency in this situation?

Mr Rizvi : The minister has not set us a deadline, but we are working as assiduously as possible to provide the advice as quickly as possible.

Senator Conroy: As I have said publicly, Senator Ludlam, I think that it is very reasonable for there to be when something gets blocked, for instance, a page-as the AFP does, and you are familiar with that-indicating what the circumstances are.

Senator LUDLAM: A block like the AFP does which says, 'You cannot reach this content.'

Senator Conroy: I think that that that is a very reasonable thing and I have asked the department to provide me with advice on a number of other transparency measures, because I agree with some of the commentary, including from yourself, that there needs to be a greater degree of transparency. As I said, we were unaware of ASIC doing this. We investigated and agree that there needs to be greater transparency.

Senator LUDLAM: Would you also acknowledge that in addition to greater transparency there needs to be a question as to whether dozens and dozens of state and territory and Commonwealth authorities should be able to issue these things at all?

Senator Conroy: The law is fairly straightforward. It has been in place through various iterations since I think 1992.

Senator LUDLAM: It has never been used in this way before. Until you hit upon this as an idea to enforce the Interpol list, section 313 notices were never used in this way before.

Senator Conroy: I do not think that that is completely accurate.

Senator LUDLAM: Provide us with an instance in which they were.

Senator Conroy: I do not think that is completely accurate. I am aware of it being used previously.

Senator LUDLAM: Can you demonstrate one single example before the use that the AFP has made of it that you instituted it for wider use than the Interpol list?

Senator Conroy: I would probably refer you to the Attorney-General's.

Senator LUDLAM: Minister, do you agree with the contention that having several dozen agencies using notices in this way-simply instituting a page that says, ‘You have been blocked by some agency,' issued on their own motion-blocking of websites, is actually vastly greater in scope than the internet filter that we first clashed on in 2009, which was at least blocking against a specific list of content?

Senator Conroy: I agree that there is a need for greater transparency as I always argued with you, or clashed as you said, when we were debating issues around the internet filter. I agreed and I think I put out a comprehensive set of transparency guidelines. I agree again that in this instance there should be a capacity for greater transparency. I sought advice from my department. I am very open to the same sorts of things that we have debated previously, and I think that you have indicated you would think are necessary, and I would agree with that. We are working to get advice and then have a discussion about it. But I am very open and supportive of it.

Senator LUDLAM: Are you open to the idea that agencies should not necessarily be able to do this at all? We do not necessarily want an indeterminate number of different state and territory agencies able to knock out online content, whether it is being done transparently not. That in fact the whole premise may indeed be flawed. When you announced these measures-

Senator Conroy: The premise of Australia's laws being complied with is something that I think is reasonable.

Senator LUDLAM: But you do not actually know who is complying with it, who is issuing these notices or what content is being knocked over.

Senator Conroy: As I said, their use by ASIC on the nine or the 10 occasions, whichever it was, I was unaware of. ASIC are an independent statutory authority. They are effectively our corporate policeman. I would not expect them to need to come and tell me that they are dealing with criminals and fraudsters and seek my permission to get compliance with the law.

Senator LUDLAM: I will put this to whomever wants to take it: in your reading of the act in question-and you have quoted a section out of it before when I asked you who could issue these notices in the first place-protection of public revenue was one of the criteria. Do local governments fit that definition in the collection of rates? Is that considered public revenue under this act?

Mr Rizvi : That would be a matter of interpretation.

Senator LUDLAM: So nobody knows.

Senator Conroy: I do not know if Mr Rizvi-and this is no reflection on him whatsoever-is a sort of legal expert. We can take some advice on that for you.

Senator LUDLAM: I am probably not even allowed to ask for legal advice at the table. It is more whether local governments are able to issue these or not.

Senator Conroy: As I was saying, I am happy to get some advice for you on that.

Senator LUDLAM: Does it concern you that you do not know?

Senator Conroy: I am not a lawyer either, so I can't give you an interpretation. But we are happy to get you some advice.

Senator LUDLAM: Whether several hundred local government authorities-no disrespect-could also at their whim-

Senator Conroy: It sounds very disrespectful, Senator Ludlam.

Senator LUDLAM: No, it is not. It is extremely alarming.

Senator Conroy: I am happy to take it on notice.

Senator LUDLAM: How many agencies are able to issue these notices and knock out internet content?

Senator Conroy: I think that Mr Rizvi has already indicated that he will take that on notice for you. You have already asked and he has already offered to take it on notice.

Senator LUDLAM: I think that it is extraordinary that we don't presently know who could be issuing these notices to knock content out. It is at their discretion to put out a press release that somebody might stumble across or not.

Senator Conroy: ASIC is an independent statutory authority-

Senator LUDLAM: I am not talking about ASIC.

Senator Conroy: that are stamping down and stopping Australians being ripped off by fraudsters from overseas.

Senator LUDLAM: So what do we do in the event that, for example, while ASIC was in the process of blocking a site that was ripping off or attempting to rip of Australians, they overblocked a thousandfold?

Senator Conroy: ASIC has an estimates process and I would invite you to go and have a conversation with them, because clearly they were unable to accurately carry out their stated desire. In fact, they were unfortunately a little overzealous in this particular issue.

Senator LUDLAM: A thousand-fold overzealous. I will leave it there. This is one of those conversations where you come out much more alarmed than when you went in.

Senator Conroy: No, you have set out to try and create alarm. You can convince yourself of anything, Senator Ludlam. CHAIR: Senator Conroy, I want to pursue some of these issues. As I read some of the press commentary on this, the concern is, I suppose, balancing the need to protect the Australian public from fraudulent conduct, in the ASIC area, against freedom of communication of the internet. How do you manage that balance?

Senator Conroy: As I have said, I have actually requested from the department some advice on a number of areas to try and make sure we get the balance right. As I have indicated notices, which I have mentioned earlier, whereby there is a page that says where you can go to if you have an issue. Clearly ASIC in this particular instance just go wrong in terms of what they attempted to block. So we want to make sure that the technical process that we are using is correct, and public reporting of it. I would again stress that ASIC put out a press release, so you can't get more a public reporting process. I would agree with the argument that their should be a more consolidated capacity to know who is doing what. I think that is a very fair and reasonable argument that is made. Getting those balances right, I have asked for that advice. It only happened quite recently and became a matter for the public. I was absolutely unaware of what ASIC had done.

Senator LUDLAM: Did you see the press release?

Senator Conroy: I have no oversight of ASIC. I have plenty of other things and press releases to keep me busy. I think the public reporting, the technical processes and what they call a blocking page notification are all important areas and I have asked the department to pull together a package for me that we can have a discussion about. I am happy to have it publicly.

CHAIR: The issue of freedom on the internet has been a debate that you have engaged in for some time. Is there still an argument that anyone should be free to do anything on the internet?

Senator Conroy: I have had many arguments about this. I believe in a civil society. I do not believe in the Wild West. I do not believe in whatever goes. There are serious organised crime operations taking advantage of the ease of access through the internet to defraud Australians. I think what ASIC did in this case was identify a scam online and then they sought to deal with it. They clearly made some mistakes and made some errors in how they dealt with it. But as to whether or not, if you have the capacity to say that this website is defrauding Australians and you say, 'No, we should do nothing', I would probably agree with ASIC. But I think there should be checks and balances. I completely agree with that. I never disagreed with that when it came to the other issues here. But I think if the argument was that we know this website is defrauding Australians and it is a complete scam and we will do nothing about it, I think that is a hard argument to sustain.

CHAIR: The other controversial issue was the accidental blocking of some legitimate websites. I am not sure if you, Senator Conroy, are the appropriate minister to deal with that, but has there been some understanding as to what happened?

Senator Conroy: I am not a technical expert on this. One of the things that I have asked advice on is on the technical pro cesses so that we can advise people about making sure they get it right. With the AFP notices that we have been using, we block a different thing than was blocked by ASIC. I think there is a lot more technical accuracy that can be brought into play here. The AFP have been very successful at blocking child abuse sites without causing mayhem and making mistakes like ASIC made. I think there are some technical processes that if we ensure that agencies are aware of you would not get the mistakes that were made. As I think Senator Ludlam understands, the AFP blocking has been very targeted, very successful and has not caused the sort of issue that ASIC caused. So it is possible to do. I think ASIC just did this particular act of enforcement very clumsily and made some mistakes. I think Mr Rizvi indicated that there were 10 instances and this is the only time they have made that mistake. But I would advise any senator who is interested to go and have a discussion with ASIC about what happened, and I am sure they would acknowledge that there was not a very well conducted attempt to deal with this matter.

Senator LUDLAM: Following this line of logic, Minister, do you believe sites that infringe copyright should also be subject to blocking?

Senator Conroy: As you know, there are a number of court cases. Individual copyright owners are pursuing that rights under law.

Senator LUDLAM: But should these sites be able to be blocked using this method if they are breaking the law?

Senator Conroy: No-one has applied to use one of these on a copyright issue. But individual copyright owners are, as you know, at this moment, issuing claims against RSPs. So the laws on this are there for people to use, not use, win and lose cases.

Senator LUDLAM: Can I go to the police and ask for a section 313 notice?

Senator Conroy: I am not sure that you would fall under the category, unless you are a local council.

Senator LUDLAM: It is police work.

Senator Conroy: I am not sure that you can request one. As I have said, we are getting a list for you of who is eligible, but I doubt that an individual citizen can walk in and ask for something like a 313.

CHAIR: Thank you, officers and Senator Ludlam.