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Chapter 5 - Notifications to and from State Ministers
Concerns about the proposal
5.1
A number of submitters to the inquiry expressed disquiet about the
proposed removal of the requirement in the TIA Act for state agencies to
provide a copy of each warrant and instrument of revocation to the responsible
state minister. Several witnesses expressed concern that removing the
requirement for state agencies to provide copies of warrants to state ministers
represented a lessening of accountability safeguards that currently apply to
the warrants process; a shifting of responsibility to the Commonwealth
Attorney-General's Department; and may possibly lead to agencies acting outside
of their current legislative requirements.
5.2
The Victorian Privacy Commissioner disagreed with the removal of the
mandatory requirements for state interception agencies to report to state ministers,
noting that the approach of state ministers to warrants may differ from that of
the Commonwealth Attorney-General. The Commissioner said that this is particularly
so in jurisdictions like Victoria, which has a Charter of Human Rights and
Responsibilities with which all state agencies, including law enforcement agencies,
are required to comply. The Commissioner concluded that the existing mandatory
reporting provides a better safeguard and should be maintained.[1]
5.3
The Australian Privacy Foundation (Privacy Foundation) also opposed the
removal of the mandatory requirement. The Privacy Foundation noted that the
change was ostensibly to 'avoid duplication', but questioned whether it was
desirable to:
...cut the State governments out of the routine reporting loop in
the way proposed. Keeping State Ministers informed of warrants is a useful
safeguard-they may question them when the Commonwealth Attorney would not. No
information has been provided about the views of the States on this change. The
provision for 'optional' State reporting doesn't necessarily address the issue
– State governments may well not take the trouble to 'opt-in' and then quietly
forget all about the interception being done by their agencies-there is merit
in our view having them 'force fed' the warrant information. While this cannot
ensure that they apply an appropriate degree of scrutiny, the potential for
them to do so is another important safeguard.[2]
5.4
At the hearing, a representative of the Privacy Foundation explained
that when copies of warrants are provided to state ministers, this opens up an
opportunity for a second person to potentially observe any patterns of use that
may be of concern; and that this was a safeguard that the Privacy Foundation
would be loath to lose:
If
it is all entirely left to the federal Attorney-General, you only have one
watchdog. In our view, it is more important to have two watchdogs that, whilst
they might not bite very often, at least occasionally might be awake.[3]
5.5
The committee questioned representatives of the Attorney-General's
Department about whether removing the requirement for state ministers to
receive copies of warrants would somehow lessen their accountability or
responsibility for the activities of their agencies. Representatives disagreed
with this proposition, stating that the oversight activities of the ombudsmen
in each state addressed this potential problem:
There is the oversight requirement that ombudsmen or like
agencies in the states have to undertake a review of the interception reporting
requirements and accountability reports are made to each state minister by
those particular oversight authorities which actually give them details of the activity
that has been undertaken by the agencies within their jurisdiction. That is a
much more meaningful report than receiving a copy of a warrant in a bundle with
others, which is then passed on to a Commonwealth minister.[4]
Committee findings
5.6
The committee notes that the proposal in the Bill is apparently
consistent with aspects of the Blunn review and Mr Blunn's observations that
there is little purpose in a state minister acting merely as a conduit between
the state agencies and the Commonwealth Attorney-General.
5.7
However, as described in Chapter 2 of this report, Mr Blunn also raised
concerns about whether the minister was meeting the intention of the TIA Act by
relying on reports of the Ombudsman, a concern that the committee shares.
5.8
It is difficult for the committee to form a view about this issue in the
absence of more detailed information. As a matter of principle, the committee
shares the view of Mr Blunn that responsibility for the actions of state
agencies must ultimately rest with their ministers:
There should be no suggestion that the agencies are reporting
directly to the Attorney-General who is then responsible for their actions. In
my opinion that responsibility must rest with the State Minister.[5]
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