Comments from Opposition Senators
The Opposition notes the earlier inquiries into the
telecommunications interception regime in Australia, referred to in Chapter 1
of this report. In particular, the Opposition notes that following a year of
extensive consultation and detailed consideration, in June 2013 the
Parliamentary Joint Committee on Intelligence and Security (PJCIS) tabled a
unanimous report recommending wide-ranging reforms to Australia's national
security legislation. In particular, the PJCIS conducted a comprehensive
review of the Telecommunications (Interception and Access) Act 1979 (TIA
Act), and in Chapter 2 of its 2013 Report made 18 recommendations for
improvements to that legislative framework.
Labor members of this Committee endorse Recommendation 18 of
the 2013 PJCIS Report, which states:
The Committee recommends that the Telecommunications
(Interception and Access) Act 1979 (TIA Act) be comprehensively revised with
the objective of designing an interception regime which is underpinned by the
following:
-
clear protection for the privacy of communications;
-
provisions which are technology neutral;
-
maintenance of investigative capabilities, supported by provisions for
appropriate use of intercepted information for lawful purposes;
-
clearly articulated and enforceable industry obligations; and
-
robust oversight and accountability which supports administrative
efficiency.
The Committee further recommends that the revision of the TIA
Act be undertaken in consultation with interested stakeholders, including
privacy advocates and practitioners, oversight bodies, telecommunications
providers, law enforcement and security agencies.
The Committee also recommends that a revised TIA Act should
be released as an exposure draft for public consultation. In addition, the
Government should expressly seek the views of key agencies, including the:
-
Independent National Security Legislation Monitor;
-
Australian Information Commissioner;
-
ombudsmen and the Inspector-General of Intelligence and Security.
In addition, the Committee recommends the Government ensure
that the draft legislation be subject to Parliamentary committee scrutiny.
Although the 2013 Report of the PJCIS was unanimous, and
included the current Attorney-General as one of its members at the time, the Abbott
Government has still not responded to the recommendations in Chapter 2, let
alone commenced the considerable work outlined in Recommendation 18 above.
Labor is also concerned that the Abbott Government chose to ignore the
recommendations for a comprehensive review of the TIA Act while pressing ahead
with the introduction of a new data retention regime in the form of the
Telecommunications (Interception and Access) Amendment (Data Retention) Bill
2014 (Data Retention Bill). It is clear to Labor members of this Committee
that improving the legislative framework for telecommunications interception
and access should have been undertaken prior to the introduction of a mandatory
data retention regime, which necessarily relies on the existing, and now outdated,
TIA Act framework.
Labor Members of this Committee also note that in its
February 2015 Advisory report on the Telecommunications (Interception and
Access) Amendment (Data Retention) Bill 2014, the PJCIS recommended that 'the
Government provide a response to the outstanding recommendations from the
Committee's 2013 Report of the Inquiry into Potential Reforms of Australia's
National Security Legislation by 1 July 2015'. Labor members of this
Committee endorse this recommendation of the PJCIS, noting that eighteen of the
nineteen outstanding recommendations referred to relate to reform of the TIA
Act. We have reproduced below the 18 recommendations of the PJCIS from the
June 2013 Report relating to the TIA Act, and call on the Government to
formally accept all of these recommendations and to commence as soon as
practicable the revision of that Act.
Labor members of this Committee also take this opportunity
to express our disappointment at the chaotic and unnecessarily rushed manner in
which the Abbott Government approached the Data Retention Bill. The Abbott
Government did nothing to progress data retention laws during its first year in
office, preferring to instead focus its energies on campaigns such as its
failed attempt to repeal the race hate provisions in section 18C of the Racial
Discrimination Act 1975. Despite failing to act on data retention laws for
over a year in office, when it finally decided to act on data retention the
Abbott Government claimed that the matter was suddenly of great urgency. The
Government then chose to ignore the unanimous 2013 recommendation of the PJCIS
to release an exposure draft of the proposed legislation for consultation, and
instead introduced a significantly flawed bill into the Parliament. Now
infamous attempts by senior members of the Government to explain the Bill in
the weeks after its introduction only created confusion that exacerbated public
concern about the effects of the proposed legislation.
The Government then sought to rush the review of the Data Retention
Bill by the PJCIS, pressing for the Bill to be reviewed with an urgency that
would have precluded proper public scrutiny. However, Labor insisted that the
Government allow time for proper consideration of the Bill by the PJCIS,
including adequate time for the public, legal bodies and key stakeholders to
make submissions, and for public hearings to be held.
The review of the Data Retention Bill by the PJCIS revealed
how flawed the Government's proposed legislation was. In its 2015 report the
PJCIS made 38 substantive recommendations for changes to the Bill to
improve the efficacy of the proposed regime, while at the same time introducing
significant improvements to the data security, oversight and accountability
mechanisms under which the proposed regime would operate. Those
recommendations were all accepted by the Government, and required numerous
amendments to the Bill.
Labor members of this Committee strongly suggest that the
Government take a more sensible, measured and consultative approach to reform
of the TIA Act. Specifically, Labor recommends that the Government does not
again ignore the bipartisan recommendations of the PJCIS, and follows the
recommendation to revise the TIA Act in consultation with relevant stakeholders
and to release an exposure draft of a revised TIA Act for public consultation
and for consideration by the PJCIS.
Recommendations of the 2013 PJCIS Report with respect to telecommunications
interception
Recommendation 1
The Committee recommends the inclusion of an objectives
clause within the Telecommunications (Interception and Access) Act 1979,
which:
-
expresses the dual objectives of the legislation
-
to protect the privacy of communications;
-
to enable interception and access to communications in order to
investigate serious crime and threats to national security; and
-
accords with the privacy principles contained in the Privacy
Act 1988.
Recommendation 2
The Committee recommends the Attorney-General's Department
undertake an examination of the proportionality tests within the Telecommunications
(Interception and Access) Act 1979 (TIA Act). Factors to be considered in
the proportionality tests include the:
-
privacy impacts of proposed investigative activity;
-
public interest served by the proposed investigative activity,
including the gravity of the conduct being investigated; and
-
availability and effectiveness of less privacy intrusive
investigative techniques.
The Committee further recommends that the examination of the
proportionality tests also consider the appropriateness of applying a
consistent proportionality test across the interception, stored communications
and access to telecommunications data powers in the TIA Act.
Recommendation 3
The Committee recommends that the Attorney-General's
Department examine the Telecommunications (Interception and Access) Act 1979
with a view to revising the reporting requirements to ensure that the
information provided assists in the evaluation of whether the privacy intrusion
was proportionate to the public outcome sought.
Recommendation 4
The Committee recommends that the Attorney-General's
Department undertake a review of the oversight arrangements to consider the
appropriate organisation or agency to ensure effective accountability under the
Telecommunications (Interception and Access) Act 1979.
Further, the review should consider the scope of the role to
be undertaken by the relevant oversight mechanism.
The Committee also recommends the Attorney-General's
Department consult with State and Territory ministers prior to progressing any
proposed reforms to ensure jurisdictional considerations are addressed.
Recommendation 5
The Committee recommends that the Attorney-General's
Department review the threshold for access to telecommunications data. This
review should focus on reducing the number of agencies able to access
telecommunications data by using gravity of conduct which may be investigated
utilising telecommunications data as the threshold on which access is allowed.
Recommendation 6
The Committee recommends that the Attorney-General's
Department examine the standardisation of thresholds for accessing the content
of communications. The standardisation should consider the:
-
privacy impact of the threshold;
-
proportionality of the investigative need and the privacy
intrusion;
-
gravity of the conduct to be investigated by these investigative
means;
-
scope of the offences included and excluded by a particular
threshold; and
-
impact on law enforcement agencies' investigative capabilities,
including those accessing stored communications when investigating pecuniary
penalty offences.
Recommendation 7
The Committee recommends that interception be conducted on
the basis of specific attributes of communications.
The Committee further recommends that the Government model 'attribute
based interception' on the existing named person interception warrants, which
includes:
-
the ability for the issuing authority to set parameters around
the variation of attributes for interception;
-
the ability for interception agencies to vary the attributes for
interception; and
-
reporting on the attributes added for interception by an
authorised officer within an interception agency.
In addition to Parliamentary oversight, the Committee
recommends that attribute based interception be subject to the following
safeguards and accountability measures:
-
attribute based interception is only authorised when an issuing
authority or approved officer is satisfied the facts and grounds indicate that
interception is proportionate to the offence or national security threat being
investigated;
-
oversight of attribute based interception by the ombudsmen and
Inspector‑General of Intelligence and Security; and
-
reporting by the law enforcement and security agencies to their
respective Ministers on the effectiveness of attribute based interception.
Recommendation 8
The Committee recommends that the Attorney-General's
Department review the information sharing provisions of the Telecommunications
(Interception and Access) Act 1979 to ensure:
-
protection of the security and privacy of intercepted
information; and
-
sharing of information where necessary to facilitate
investigation of serious crime or threats to national security.
Recommendation 9
The Committee recommends that the Telecommunications
(Interception and Access) Act 1979 be amended to remove legislative
duplication.
Recommendation 10
The Committee recommends that the telecommunications
interception warrant provisions in the Telecommunications (Interception and
Access) Act 1979 be revised to develop a single interception warrant
regime.
The Committee recommends the single warrant regime include
the following features:
-
a single threshold for law enforcement agencies to access
communications based on serious criminal offences;
-
removal of the concept of stored communications to provide
uniform protection to the content of communications; and
-
maintenance of the existing ability to apply for telephone
applications for warrants, emergency warrants and ability to enter premises.
The Committee further recommends that the single warrant
regime be subject to the following safeguards and accountability measures:
-
interception is only authorised when an issuing authority is
satisfied the facts and grounds indicate that interception is proportionate to
the offence or national security threat being investigated;
-
rigorous oversight of interception by the ombudsmen and
Inspector-General of Intelligence and Security;
-
reporting by the law enforcement and security agencies to their
respective Ministers on the effectiveness of interception; and
-
Parliamentary oversight of the use of interception.
Recommendation 11
The Committee recommends that the Government review the
application of the interception-related industry assistance obligations
contained in the Telecommunications (Interception and Access) Act 1979
and Telecommunications Act 1997.
Recommendation 12
The Committee recommends the Government consider expanding
the regulatory enforcement options available to the Australian Communications
and Media Authority to include a range of enforcement mechanisms in order to
provide tools proportionate to the conduct being regulated.
Recommendation 13
The Committee recommends that the Telecommunications
(Interception and Access) Act 1979 be amended to include provisions which
clearly express the scope of the obligations which require telecommunications
providers to provide assistance to law enforcement and national security
agencies regarding telecommunications interception and access to
telecommunications data.
Recommendation 14
The Committee recommends that the Telecommunications
(Interception and Access Act) 1979 and the Telecommunications Act 1997
be amended to make it clear beyond doubt that the existing obligations of the
telecommunications interception regime apply to all providers (including
ancillary service providers) of telecommunications services accessed within Australia.
As with the existing cost sharing arrangements, this should be done on a
no-profit and no-loss basis for ancillary service providers.
Recommendation 15
The Committee recommends that the Government should develop
the implementation model on the basis of a uniformity of obligations while
acknowledging that the creation of exemptions on the basis of practicability
and affordability may be justifiable in particular cases. However, in all such
cases the burden should lie on the industry participants to demonstrate why
they should receive these exemptions.
Recommendation 16
The Committee recommends that, should the Government decide
to develop an offence for failure to assist in decrypting communications, the
offence be developed in consultation with the telecommunications industry, the
Department of Broadband Communications and the Digital Economy, and the
Australian Communications and Media Authority. It is important that any such
offence be expressed with sufficient specificity so that telecommunications
providers are left with a clear understanding of their obligations.
Recommendation 17
The Committee recommends that, if the Government decides to
develop timelines for telecommunications industry assistance for law
enforcement and national security agencies, the timelines should be developed
in consultation with the investigative agencies, the telecommunications
industry, the Department of Broadband Communications and the Digital Economy,
and the Australian Communications and Media Authority.
The Committee further recommends that, if the Government
decides to develop mandatory timelines, the cost to the telecommunications
industry must be considered.
Recommendation 18
The Committee recommends that the Telecommunications
(Interception and Access) Act 1979 (TIA Act) be comprehensively revised
with the objective of designing an interception regime which is underpinned by
the following:
-
clear protection for the privacy of communications;
-
provisions which are technology neutral;
-
maintenance of investigative capabilities, supported by
provisions for appropriate use of intercepted information for lawful purposes;
-
clearly articulated and enforceable industry obligations; and
-
robust oversight and accountability which supports administrative
efficiency.
The Committee further recommends that the revision of the
TIA Act be undertaken in consultation with interested stakeholders, including
privacy advocates and practitioners, oversight bodies, telecommunications
providers, law enforcement and security agencies.
The Committee also recommends that a revised TIA Act should
be released as an exposure draft for public consultation. In addition, the
Government should expressly seek the views of key agencies, including the:
-
Independent National Security Legislation Monitor;
-
Australian Information Commissioner;
-
ombudsmen and the Inspector-General of Intelligence and Security.
In addition, the Committee recommends the Government ensure that
the draft legislation be subject to Parliamentary committee scrutiny.
Conclusion
Labor will always work to keep our nation safe, and at the
same time to uphold the rights and freedoms enjoyed by all Australians.
Getting this balance right can be a challenging task, and it is clear that
there is still work to do to ensure that Australia's national security and law
enforcement legislation meets the needs of our agencies while at the same time
incorporating robust and effective oversight mechanisms and safeguards.
For example, Labor will continue to press for improvements
to data security through the Telecommunications Sector Security Reform (TSSR)
process. The TSSR aims to identify, manage and mitigate national security
risks associated with Australia's telecommunications infrastructure, including
matters such as the physical location of stored telecommunications data. This
was also the subject of the PJCIS's 2013 report, which included at
Recommendation 19:
The Committee recommends that the Government amend the Telecommunications
Act 1997 to create a telecommunications security framework that will
provide:
-
a telecommunications industry-wide obligation to protect infrastructure
and the information held on it or passing across it from unauthorised interference;
-
a requirement for industry to provide the Government with information to
assist in the assessment of national security risks to telecommunications
infrastructure; and
-
powers of direction and a penalty regime to encourage compliance.
These PJCIS also recommended that the TSSR be subject to a
comprehensive regulatory impact assessment.
In addition to the TSSR process, Senator John Faulkner, who
retired from the Parliament in February this year, advocated for further
improvements to the transparency and accountability mechanisms in our national
security frameworks. It was Senator Faulkner's view that it is the Parliament
to which our police and national security agencies are ultimately accountable,
and it is the Parliament's responsibility to oversee their priorities and
effectiveness, and to ensure that our agencies meet the requirements and
standards that Parliament sets.
To this end Senator Faulkner developed a set of reforms
designed to ensure that the effectiveness of Parliamentary oversight of intelligence
and security agencies keeps pace with any enhanced powers being given to those
agencies. A key reform recommended by Senator Faulkner was for the PJCIS to
have oversight of certain operational matters of the security agencies.
Progress towards that reform is evident in the Data Retention Bill, which Labor
pressed to be amended so that the PJCIS could oversight aspects of the data
retention scheme.
Labor will bring forward legislation this year to give
effect to the wider reforms proposed by Senator Faulkner.
Labor believes that ensuring the ongoing efficacy and
integrity of our national security architecture is an ongoing responsibility of
all parliamentarians, and Labor will continue to engage constructively in this
important process.
Senator Jacinta
Collins
Labor Senator
for Victoria
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