Police, intelligence and security agencies are to get for the first time explicit powers to intercept and read email and mobile telephone text messages under new laws to strengthen their ability to catch criminals and terrorists.
The Federal Government has secured in-principle support from Labor and the Democrats for new laws that are expected to be voted on next month after promising to increase safeguards and clarify when warrants will be needed.
Attorney-General Philip Ruddock told The Sunday Age the Government had feared a court case against a suspected terrorist or drug dealer could be thrown out on a technicality if the telecommunications interception laws were not updated to include the newer and now commonly used technology.
The new laws will cover "stored communication", which will include email messages, mobile and fixed telephone voicemail messages, SMS (short message services) and MMS (multimedia messaging services), including photos.
It is the third attempt by the Government to make the change. It was rejected by the Senate two years ago, when it was included as part of a package of anti-terrorism laws, because it gave law enforcement agencies unfettered powers.
Mr Ruddock recently agreed to compromise and put in extra safeguards after the Senate's legal and constitutional affairs committee raised concerns.
Labor homeland security spokesman Robert McClelland said Mr Ruddock had "shown good faith" on the issue and the ALP had decided to give in-principle support to the changes.
Mr Ruddock said the existing law allowed only "listening to and recording" of old-fashioned phone conversations. The change would also allow "reading and viewing" a communicated message such as text or photos.
Law enforcement agencies will need one type of warrant to intercept the transmission of a phone message or email, but once it is received or stored a second type of warrant will be needed to retrieve a message from the phone company or internet service provider.
The Government said police would not need a warrant to read messages already stored on a phone if they had the phone. Strict technical rules will apply.
A Senate committee exposed problems earlier this year when it uncovered confusion in Government ranks about whether existing powers covered new technology. The federal police believed they had such powers but the Attorney-General's Department said they did not.
"What we're seeking to do is to cover the field to put it beyond doubt," Mr Ruddock said. "It's being assured that law enforcement agencies can use their powers effectively and that they don't get struck out because of some technical defence because we failed to update the law."
Mr Ruddock said the new laws also gave protection to ordinary people by specifically making it illegal to read or view another person's messages.
Mr McClelland said Labor believed the safeguards put in place were appropriate. They include broader powers for the Commonwealth Ombudsman in this area and require agencies to report whether prosecutions arise from interceptions.
"Subject to the Government complying with recommendations from the Senate legal and constitutional committee, the Opposition's indicated we will support the measures because it is important to ensure law enforcement keeps pace with modern technologies," he said.
Democrats legal spokesman Brian Greig said if the legislation was simply updating phone tapping to include email, voicemail and SMS "it's hard to argue against it".
"We want to see the fine detail of the legislation. If we can be assured there are checks and balances . . . we might be able to bring ourselves to support that."
