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Supplementary report with additional comments of dissent by the Australian Democrats
1.1
The Democrats commend the Chair and
Committee Secretariat on the comprehensive and considered nature of the Committee’s
report and agree with the majority of the Committee’s recommendations.
1.2
We believe that the
recommendations made by the Committee will provide additional privacy
protections and improve the overall accountability of the telecommunications
interception regime.
1.3
However, the Democrats have a
number of additional concerns which we consider should be addressed before the
bill is passed.
The Government’s attitude to
legislation affecting national security
1.4
The Government contends that the
main purpose of this bill is to amend the TIA Act to extend by eighteen months the operation of the
network protection provisions which are due to sunset on 13 June 2008. For
this reason, Parliament was asked to consider the bill time critical and the
Government initially sought to have it included in the non-controversial
legislation list.
1.5
It was asserted in the
Attorney-General’s second reading speech that the remainder of the bill
implements a number of ‘minor yet important technical amendments’, and that the bill ‘contains no new powers for security or law
enforcement agencies in relation to telecommunications interception, stored
communications or access to data, but ensures that these agencies have the
necessary tools to combat crime in this age of rapid technological change’.
1.6
It is of great concern to the
Democrats that on the first occasion that the new Government turns its mind to
any form of legislation that impacts upon Australia’s national security regime,
it has labelled the bill ‘time critical’ and sought to limit debate.
1.7
Indeed, during a detailed debate
on the 2006 amendment bill which carried over three days in the Senate Chamber,
the then Opposition moved a series of amendments to the TIA Act. The
amendments focussed on the then Opposition’s concern that the legislation did
not adequately protect individual privacy, particularly in relation to B-Party
warrants
1.8
Senator Ludwig, the
then Shadow Minister for Justice and Customs and Manager of Opposition Business
in the Senate, carried the debate. During the third reading speech, Senator Ludwig said:
‘The position we have now got
to is that the government has voted down sensible amendments which came out of
the committee process.....It is unfortunate that this government has not picked
up the amendments that Labor has proposed, safeguards which would have struck
the right balance. It really comes down to a lazy Attorney-General, who has not
had the opportunity to look at the recommendations, to bring forward amendments
and to argue for them in here. That is why this extended process has occurred:
because of a lazy Attorney-General. There is no other way of putting it.
The government could have
picked up our recommendations during this debate. They have not. Therefore, they have not struck the right balance. Privacy is not
sufficiently protected so far as B-party intercept warrants are concerned.’[1]
1.9
However, in one of its first
legislative acts in the new Parliament, the Government has revisited this
legislation, attempted to curtail debate, and has made no attempt to address
the numerous concerns that it had with the legislation in 2006.
1.10
Further, it is clear from the
nature and extent of submissions received to this inquiry and from the detailed
consideration and conclusions contained in the Chair’s report, that the
amendments proposed by this bill are far from ‘minor’ or ‘technical’. Indeed,
the Chair has concluded (at paragraph 4.30) that the amendments in relation
device-based warrants ‘propose to remove an important existing safeguard’.
1.11
The Democrats also recommended a
series of amendments to the TIA Act when the 2006 amendment bill was passed,
particularly in relation to B-party warrants, and recommended further
amendments when the 2007 amendment bill was before the Senate, particularly in
relation to warrantless access to prospective or ‘real time’ telecommunications
data.
1.12
In the circumstances, the
Democrats consider that the TIA Act requires significant further amendment in areas which
have not been addressed by this bill.
Recommendation 1
The
Democrats recommend that the Government immediately review the privacy
protections available under the TIA Act with a view to implementing amendments moved
by the then Opposition and the Australian Democrats when the TIA Act was
amended in 2006 and 2007.
Extension of the sunset
provisions
1.13
The Democrats agree with the
Chair’s conclusion that the extension of the sunset provisions under subsections
5F(2) and 5G(2) of the TIA Act should be allowed to pass without amendment.
1.14
The Democrats also support the
Chair’s recommendation that any further legislation to address network
protection provisions should include a thorough and considered response to
achieving a balance between individual privacy rights and network protection
requirements.
1.15
However, the Democrats are
concerned that progress in relation to a permanent legislative solution has not
progressed beyond a draft discussion paper that has not been circulated outside
the Attorney-General’s Department[2].
1.16
The Democrats consider that such
progress is unacceptably slow and urge the Government to work towards a
permanent solution to this issue as expeditiously as possible.
1.17
The Democrats also note the there
is a degree of uncertainly surrounding the application of the TIA Act to
organisations other than law enforcement and intelligence agencies that do not
have the benefit of an exemption.
1.18
As Electronic Frontiers Australia
stated during this inquiry:
‘Simply
put, it seems now that ASIO, the police and anticorruption agencies may be able
to legally filter viruses and spam from their incoming email but there is a
good chance that organisations in the private sector and indeed government
organisations not specifically provided for in the legislation may be
committing an offence by doing that.’[3]
1.19
The Democrats note recent comments
from the Attorney-General that indicate that the Department is developing a
solution to this problem.
1.20
The Democrats consider that any
uncertainty surrounding the application of the TIA Act to
non-exempt organisations should be addressed as a matter of urgency and, if
clarifying legislation is required, it should be developed commensurate with
the permanent legislative solution in respect of law enforcement and
intelligence agencies.
Recommendation 2
The
Democrats recommend that the Government develop a permanent legislative
solution in relation to the monitoring of electronic communications by both
Government and non-Government organisations as a matter of urgency.
Device-based named person
warrants
1.21
Device based interception warrants
were introduced by the 2006 amendment bill.
1.22
During the Committee inquiry into
the 2006 amendment bill, the Democrats considered that there was significant
uncertainty surrounding the ability to uniquely identify communications devices
and recommended that the provisions of the 2006 amendment bill relating to
device based warrants be delayed until it was possible to determine the full
scope of their operation[4].
1.23
The Democrats note the concern
expressed by privacy and civil liberties groups, as reflected in the Chair’s
report, regarding the continued uncertainty in relation to unique identifiers.
1.24
Accordingly, the Democrats support
the Committee’s recommendation to implement recommendation 3.2.5 of the Blunn
report and that and priority given to developing a unique and indelible
identifier of the source of telecommunications.
1.25
However, the Democrats consider
that the implementation of recommendation 3.2.5 of the Blunn report should be a
condition precedent to access to telecommunications via devoice-based warrants.
1.26
The Blunn report did not recommend
the introduction of device-based warrants, rather ‘that priority be given to
developing a unique and indelible identifier of the source of
telecommunications and therefore as a basis for access’ (emphasis added).
1.27
The Democrats consider that to
allow the development and expansion of the device-based warrant regime before
the development of a ‘unique and indelible identifier’ is to ‘put the cart
before the horse’. We consider that the risk posed by inadvertent privacy
invasion due to inaccurate or incorrect device identification is too high.
1.28
Accordingly, the Democrats
consider that the provisions in the bill in relation to device based warrants
should be deleted.
1.29
Notwithstanding, while the
Democrats maintain an in-principle objection to the expansion of the
device-based warrant regime, we support the Committee’s conclusions (at 4.48 to
4.50) that:
- ‘after the fact’ reporting is
insufficient to adequately assess issues associated with individuals’ privacy
and rights; and
- internal accountability mechanism
are unacceptable and the best practice is to maintain independent scrutiny,
should agencies be authorised to add devices to a warrant, except in
exceptional circumstances.
1.30
We consider that the Committee
recommendations numbers 3, 4 and 5 in Chapter 4 will improve the bill
immeasurably by creating a more transparent and independent authorisation
mechanism for device-based warrants.
1.31
If the Senate considers it
appropriate to proceed in line with these recommendations, the Democrats
consider that an appropriate addition to recommendation 4 would provide that,
where an issuing authority determines that a person has been subject to
unlawful interception, that person shall be notified of the interception
immediately unless such notification would materially prejudice the conduct of
an ongoing investigation.
1.32
The Democrats also reserve the
right to move additional amendments subject to the final form of the bill when
it is debated in the Senate.
Recommendation 3
The
Democrats recommend that the provisions in the Bill in
relation to device-based named person warrants should be deleted.
Recommendation 4
The
Democrats recommend that, if the provisions in the Bill in relation to
device-based named person warrants are passed with a requirement for
independent examination by an issuing authority and the authority determines
that the addition of devices to an existing warrant was unlawful, the person
subject to the unlawful interception should be notified of the interception
immediately unless such notification would materially prejudice the conduct of
an ongoing investigation.
International,
national and state obligations
1.33
The Democrats support the
Committee’s recommendations that the Government commission an independent
review of the operation of the TIA within three years; and that the TIA Act be amended
to provide a statutory requirement for independent review every five years.
1.34
The Democrats also support the
Committee’s conclusion that a summary statement in the EM of consistency with international
obligations (in lieu of an express right to privacy under Australian law) would
be a useful guide when considering any further legislative amendments.
Public Interest
Monitor
1.35
The Democrats view this Bill as an
expansion of the telecommunications monitoring powers of the Commonwealth. The
Democrats also consider that the significant other amendments made to the TIA Act during
2006 and 2007 did not adequately address privacy concerns.
1.36
As a result, there is a
significant risk that the powers available to law enforcement and security
agencies under the TIA Act could breach the privacy rights of Australian
citizens.
1.37
As such it is appropriate that
there be an independent umpire to balance necessary, lawful, and proportionate
access by law enforcement agencies to telecommunications data with the public's
right to communicate free from surveillance.
1.38
The Democrats note that in
relation to the area of listening devices, a model can be found in Queensland,
where a Public Interest Monitor is authorised under the Police Powers and
Responsibilities Act 2000 (Qld) to intervene in applications for listening
devices warrants, and to monitor and report on the use and effectiveness of the
warrants.
1.39
The Democrats see merit in
adopting the Queensland public interest monitor model to improve
accountability.
Recommendation 5
The
Democrats recommend that the TIA Act be amended to require law enforcement and
intelligence agencies to consult with a Public Interest Monitor (PIM) before
they apply for an authorisation under the TIA Act.
Senator Natasha Stott Despoja
Australian
Democrats
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