Bills Digest no. 102 2005–06
Telecommunications (Interception) Amendment
Bill 2006
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Telecommunications (Interception)
Amendment Bill 2006
Date Introduced:
16 February 2006
House: House of Representatives
Portfolio: Attorney-General
Commencement:
Schedule 1 (Stored
communications), Schedule 2 (B-party interception) and Schedule 3
(Equipment-based interception) will commence on the day after
the Bill receives Royal Assent. Schedule 4 (Class 1 and class 2
offences) commence on 1 July 2006. Schedule 5 (Transfer of
functions) will commence on a day to be fixed by Proclamation.
Schedule 6 (Other amendments) will commence on the day on which
this Act receives Royal Assent or as otherwise specified by this
Bill.
The purpose of
this Bill is to amend the Telecommunications (Interception) Act
1979 (the Act) to implement certain recommendations of the
Blunn Report on the review of the regulation of access to
communications under the Act.
In implementing recommendations of the Blunn
Report, the Explanatory Memorandum states that this Bill
will amend the Act to:
-
insert a warrant regime for access to stored communications held
by a telecommunications carrier
-
enable interception of communications of a person known to
communicate with the person of interest
-
enable interception of telecommunications services on the basis
of the use of a telecommunications device
-
remove the distinction between class 1 and class 2 offences for
which telecommunications interception powers are available to law
enforcement agencies, and
-
remove the Telecommunications Interception Remote Authority
Connection function currently exercised by the Australian Federal
Police and transfer the associated warrant register function to the
Department administering the legislation.
This Bill will also amend the Act to:
-
remove the exception to the definition of interception in
subsection 6(2) of the Act
-
clarify that employees of a carrier exercise authority under a
telecommunications interception warrant when assisting law
enforcement agencies in the execution of interception
-
include an additional permitted purpose for use and
communication of lawfully obtained information in relation to the
Victorian Office of Police Integrity, and
-
update applicable references to money laundering offences in New
South Wales.(1)
The primary object of the Act is to protect
the privacy of personal communications by generally prohibiting
interception of those communications, subject to limited exceptions
in which privacy is outweighed by other considerations. Thus, until
this bill, interception has been prohibited, except for specific
enumerated exceptions. Indeed, the Blunn report found that although
phone tapping was essential for fighting crime and protecting
national security, there should be tighter laws to protect
privacy.
The Telecommunications (Interception)
Amendment (Stored Communications) Act 2004 introduced into the
Act the concept of a stored communication (paragraph 7(3A)) and
provided that a stored communication could be intercepted without
the need for a telecommunications interception warrant (paragraph
7(2)(ad)).(2) Access to such communications could
therefore be obtained by other lawful means, such as by a normal
search warrant.
A stored communication broadly defined
includes electronic messages located on a computer, internet server
or other equipment, whether read or unread, such as emails, text
messages and voicemail. Subsection 7(1) of the Act prohibits
interception of communications 'passing over' a telecommunications
system. The confusion that arose was that in certain situations
emails, text messages, voice mail etc can be deemed to be no longer
'passing over' any such system.
The Attorney-General Philip Ruddock was quoted
in the media stated that the Bill was necessary because terrorist
suspects were going to extraordinary lengths to avoid
detection:
Evasive techniques included daily swapping of
mobile phone SIM cards; storing draft emails in accounts, but not
transmitting them; and using the phones of other people.
I know that because I see a lot of the material
that is yielded, where people are talking in veiled language, using
all sorts of techniques. We have to keep moving as well and keeping
up to date.(3)
The stored communications amendments in 2004
were intended as an interim measure pending a review by Mr Anthony
S. Blunn AO of the regulation of access to communications in
Australia. The amendments were originally subject to a 12-month
sunset clause meaning that the provisions were to cease operation
on 14 December 2005. The Telecommunications (Interception)
Amendment (Stored Communications and Other Measures) Act
2005 extended the sunset date until 14 June 2006 to
provide sufficient time to consider the recommendations of the
Blunn review. The
Report of the Review of the Regulation of Access to
Communications ( the Blunn Report )(4) was
presented to Parliament on 14 September 2005 when the
Telecommunications (Interception) Amendment (Stored
Communications and Other Measures) Act 2005 was
introduced.
See also the
report on the May 2004 Bill by the Senate Legal and
Constitutional Committee.
The Blunn Report recommended that:
-
the distinction between real time access i.e. interception, and
access to stored data be maintained
-
access to stored communications continue to be authorised by
search warrant but those warrants be required to meet minimum
prescribed standards, and
-
in the context of accessing stored communications any specific
reference to Voice over Internet Protocol (VoIP) is unnecessary and
should be removed.
For further detail see Bills
Digest no. 53 2005 06, and Bills
Digest No. 153 2003-2004. Bills
Digest 111 2003-2004 sets out the differences between an
interception warrant and an ordinary search warrant, and provides a
historical overview of telecommunications interception in
Australia.
This Bill will generally prohibit access to
stored communications in the same manner as telecommunication
interceptions are currently prohibited (see Schedule 1, new
section 108), with some key differences (outlined in
new Part 3.3). New Chapter 3 contains the new
stored communications provisions in seven Parts:
-
prohibition on access to stored communications
-
access by Australian Security Intelligence Organisation (ASIO)
to stored communications
-
access by enforcement agencies to stored
communications
-
ealing with accessed information
-
keeping and inspection of access recordsBills Digest no. 102
2005–06
Telecommunications (Interception) Amendment
Bill 2006
-
reports about access to stored communications, and
-
civil remedies.
The Blunn Report defines B-Party intercepts as
occurring
where there is evidence that a person, other than
a person suspected of involvement in the prescribed crime, the
B-Party, is using a telecommunications service for communications
which are believed to be relevant to the investigation. The B-Party
may simply be a conduit for a relevant communication and may not
even be aware of the use being made of them.(5)
B-party interceptions are not new. They are
currently provided for under section 46(1) of the existing Act but
Blunn notes that the section has not been utilised by the relevant
agencies as the provisions were seen as open to several
interpretations. As it is an intrusive power affecting
non-suspects, the legislation should therefore be construed
strictly.
The Blunn review recommended the legal status
of B-Party interceptions be clarified to make it clear that B-Party
services may be intercepted in limited and controlled circumstances
.(6)
The only direct consideration of this aspect
of section 46 by a court since its introduction was in the case of
Flanagan
v AFP (1996) 60 FCR 149. One issue in question in the
Flanagan case was where the subscriber of a telephone
service intercepted was not the particular person being
investigated in respect of the offence, or as the judgment itself
states at section 6.5, whether the scope of the TI warrant exceeded
what the legislation permits such a warrant to authorise (at pages
201 2). The target of the investigation was Mr Flanagan, but the
subscriber to the telephone service that was intercepted was his
wife, Mrs Flanagan.
The applicants, the Flanagans, argued that the
TI warrant authorised interceptions beyond those contemplated by
the scheme of the TI Act because they were not limited to
communications made to or from the relevant service which would be
likely to assist in the investigation of the specified criminal
offences. They further argued that, since the subscriber for the
service in question was Mrs Flanagan, it was highly probable that
at least some communications to and from the service would have
nothing whatever to do with Flanagan or Bruno Grollo, being the
particular person whom the eligible Judge was satisfied was using
or likely to use the service. Those extraneous communications would
be unlikely to assist in the investigation of any relevant class 2
offence and, therefore, did not come within the ambit permitted by
the phrase such communications in s 46(1)(e).
The Federal Court rejected that argument as a
matter of statutory interpretation and practicality and found that
all communications made to or from the service could be
monitored and the warrant was valid.
Until a communication to or from a service has
been intercepted and recorded, it is impossible to know whether it
would be likely to assist in an investigation, or even to identify
the parties to the communication. If warrants were confined to
authorising the interception of communications to which the
particular person could be identified at the outset as a party,
they would lose much of their efficacy. This cannot have been
intended.
There is no requirement that the prescribed
offence be one in which the particular person contemplated by s
46(1) is involved.(7)
Blunn states in
relation to this case:
although the Federal Court in John Flanagan v
The Commissioner of the Australian Federal Police has upheld
the validity of a B-Party warrant it did not provide any useful
analysis of the rationale.(8)
Blunn is not expansive in his explanation of
the rationale for B-Party warrants either, other than his view that
such intercepts are useful in certain
circumstances.(9)
Nevertheless, as noted, the agencies have not
sought to act under this power as a matter of caution. The
amendments made by this Bill seem designed to cover both possible
interpretations of the term person involved to remove all possible
doubt and therefore enable the agencies to seek B-Party warrants.
There may be limited scenarios where the communications of a person
targeted by a B-Party warrant could not already be monitored under
a named person warrant.
The B-Party warrant will only be available for
investigations of serious offences punishable by a maximum period
of at least seven years imprisonment, and as a last resort.
As per the discussion of B-Party warrants
above, the Bill seeks to expand the possibilities of interception
to cover all evasive techniques criminals may take using new
technologies. The purpose of Schedule 3 is to amend the named
person telecommunications interception warrant provisions to enable
interception agencies to intercept communications to and from
identified devices such as mobile handsets and computer
terminals.
An issuing authority must not authorise
interception on the basis of the telecommunications device unless
satisfied that the applicant agency has no practicable methods of
identifying the telecommunications services used or likely to be
used by the person of interest, or that interception of those
services would not be possible (Schedule 3, item
8).
The Explanatory Memorandum notes:
The latter situation covers instances in which
agencies may be able to identify all services, but it is
impractical to intercept each service. For example, a person of
interest may transfer hundreds of different Subscriber Identity
Module (SIM) cards through a mobile handset in quick succession.
Interception of each telecommunications service (currently
identified by reference to the SIM card) is extremely impractical
to achieve before the person of interest changes the SIM card being
used.(10)
Most press and interest group commentary has
been in relation to the issue of B-Party warrants. Mr Cameron
Murphy, Chair of the NSW Council for Civil Liberties has argued
that:
This is the first time ever in Australia s history
that we see the police being given the power to tap the phones of
people who are not suspects, who are innocent people and just
people who happen to be in contact with someone, likely to be in
contact with someone who s a criminal. And it massively expands
police surveillance and it s directly targeted against innocent
people who are doing nothing wrong.(11)
In another interview, Mr Murphy told 2CC radio
there was no demonstrated need for the laws:
I can t think of a real, practical situation where
these powers would be needed. The way the law stands at the moment
is that the police and many other agencies in Australia can obtain
a warrant to tap a particular phone line. They ve already got the
power to do that. They can also apply to obtain a warrant to tap on
the basis of a named person, so they can tap any phone that that
named person is likely to use. So it can cover a range of phones,
not just the one line particular line.(12)
The Section President of International
Commission of Jurists Australia, the Hon Mr John Dowd also stated
in the press that the B-party intercepts were an unwarranted
extension of police and ASIO powers for which no justification has
been given .(13)
The NSW Council for Civil Liberties main
concern, as expressed in the media, is the right to privacy of
non-suspects:
Now, on the phone, people make private
conversations. They might be talking to a loved one, they might be
discussing a medical condition with a doctor. They re incredibly
personal and private things
It may be an evolving
question where the balance lies in privacy issues where crime and
national security are involved in Australia. In introducing the
Bill to the House, Attorney-General The Hon. Philip Ruddock
addressed the question of whether Australian communications were
intercepted more than American communications in the following
manner:
I note that critics of Australia s interception
regime have again advanced old arguments that Australian agencies
intercept communications at many times the rate of United States
agencies and others.
As I have pointed out on a number of previous
occasions, it is simply not true to complain that Australians are
intercepted more than Americans. Direct comparisons between
Australian and US statistics are misleading because legislative
controls on interception differ widely between jurisdictions.
Statistics published in the United States do not
include interceptions considered by the investigators to be too
sensitive to report. Investigators in Australian law enforcement
agencies do not have this discretion and therefore all
interceptions must be reported.
United States law allows one warrant to authorise
the interception of services used by many people, for instance
where it becomes possible to identify criminal associates of the
original suspect.
This results in fewer statistical returns than
under Australian law, which allows a warrant to authorise the
interception of a single telecommunications service or the services
of one named person only.
Comparisons of the type made both recently and in
the past are therefore misleading and unfairly impugn our law
enforcement agencies. The use of interception is subject to strict
controls and it is a tool to be employed only in the investigation
of the most serious offences.
The Attorney-General was presumably referring
to media statements made by the NSW Council of Civil Liberties
Chair Mr Cameron Murphy in January and February of this year. The
statements were based on a comparison of a report by the
Attorney-General s Department,
Telecommunications (Interception) Act 1979: Report for the year
ending 30 June 2004, released in March 2005, and a report
by the Administrative Office of the US Courts, 2004 Wiretap
Report, from April 2005.
The Council stated:
Recently released figures show that telephone
wiretapping by government agencies in Australia (including the
police) continues to grow. Not only does Australia issue 75% more
telecommunications interception warrants than the US, but
per capita Australia issues 26 times more
warrants than the US. In Australia non-judges issue 76% of all
warrants, whereas in the US only judges can issue warrants.
In the twelve months 2003/2004 there were 3028
warrants issued in Australia. In the twelve months of 2004, US
courts issued 1710 warrants. Adjusting for population, Australia
intercepts telephone communications 26 times more per
capita than the United States.
Worryingly, the numbers are way up on figures only
two years ago. In 2001 there were more than 2150 warrants issued in
Australia, compared with only 1490 warrants issued in the United
States of America. Australia intercepted telephone communications
20 times more per capita than the United States.
The Council blames the increase in
phone-tapping on AAT members acting as issuing authorities:
In Australia it is illegal to intercept
telecommunications without a warrant. However, these warrants can
be issued by people other than judges. Members of the
Administrative Appeals Tribunal ( AAT ) who have been lawyers for
more than five years can be nominated (by the government) to issue
warrants. In the reporting year 2003/2004, the vast majority of
warrants (76%) were not issued by judges, but by members of the
AAT.
AAT members do not have tenure, are appointed by
the government and work on contract. This means that AAT members
are more likely to do the government s bidding than a judge, which
explains why most warrants are issued by
non-judges.(14)
The Australian figures include interceptions
by the National Crime Authority, the Australian Federal Police and
state policing agencies, but exclude ASIO. The US figure includes
federal and state law enforcement agencies and some FBI taps. Only
judges can approve phone taps in the US but there has been recent
controversy over the revelation by President Bush that he ordered
the National Security Agency to monitor communications in secret
without warrants since 2001 in a 'terrorist surveillance program
.
Given the nature of the reporting and the lack
of comprehensive statistics on phone tapping from either the US or
Australia, comparisons may be difficult to make. The premise of the
question may be wrong in any event should the yardstick by which
the private communications of Australian citizens are monitored be
set by another country?
The Sydney Morning Herald reported
disquiet over the Schedule 2 B-Party amendments by five backbench
members of the Coalition, naming three, the National Party s Paul
Neville, the Sydney Liberal MP Bruce Baird and the Victorian
Liberal Petro Georgiou.(15)
In a Joint Statement by Arch Bevis MP (Shadow
Minister for Homeland Security), Senator Joe Ludwig (Shadow
Minister for Justice and Customs), and Nicola Roxon MP, Shadow
Attorney-General on 15 February 2006, Labor cautiously welcomed the
introduction of the Bill because:
These changes will bring the Act up to date and
put the state and federal law enforcement agencies on a more even
footing with criminals and terrorists.(16)
The statement confirmed that Labor will seek
to refer the Bill to the Senate Legal and Constitutional Committee
and pay particular attention to B-party communications, but felt it
was clear that the current legislation had been overtaken by
developments in technology and was in need of review.
Senator Natasha Stott Despoja, Australian
Democrats spokesperson for the Attorney General s portfolio stated
that the Australian Democrats will challenge the Bill because it
represents yet another unjustified intrusion on the private lives
of Australians .
The Blunn Review did not argue the case
sufficiently to justify such invasive laws on stored
communications. The pretence of modernising surveillance is a weak
argument.
The tests and oversight that the Attorney-General
is promising are a completely inadequate defence for these
disturbing new laws.(17)
Greens Leader Bob Brown issued a press release
on 15 February 2006 stating that allowing police and spy agencies
to monitor the phone calls, emails and text messages of people not
suspected of a crime represents a dangerous incursion on civil
liberties:
The Howard government wants to give police the
power to tap the phones of innocent people people the police don t
even suspect of a crime. Surely Australians who are suspected of no
crime are entitled to their privacy...This is a new low in the
preservation of our civil liberties.(18)
Part 1, item 1 inserts a
definition of stored communication into existing
subsection 5(1) of the Act. A stored communication is defined to
mean a communication with four specific elements:
-
the communication must have passed over a telecommunications
system (therefore not stored draft emails)
-
the communication must not be passing over that or any other
telecommunications system (clarified in new section
5F)
-
the communication must be held on equipment operated by
the telecommunications carrier at its premises. The regime does not
affect existing lawful access to communications stored on a person
s telecommunications device such as a mobile phone handset, which
remain subject to general lawful access including access by
consent, or under a general search warrant, or a notice to produce,
and
-
the communication must be accessible to the intended recipient
of the communication (defined further in new section
5G ( intended recipient ) and new section
5H ( able to access )).
Item 2 inserts four new
definitional sections into the Act. New section 5E
defines serious contravention, which must be, or have
been, committed, or be reasonably suspected of being committed for
an enforcement agency to be able to obtain a stored communications
warrant (new subsection 5E(2)).
New subsection 5E(1) defines
serious contravention to be a contravention against a law of the
Commonwealth, a State or a Territory that is:
-
a serious offence (the existing threshold for obtaining a
telecommunications interception warrant, as defined by section
5D)
-
an offence punishable by imprisonment for a period, or a
maximum period, of at least three years, or the equivalent
pecuniary penalty (which is at least 180 penalty units for
individuals or at least 900 penalty units for corporations), or
-
a breach of a civil penalty provision that would render the
person committing the contravention liable to a fine of at least
180 penalty units ($19,800) (or at least 900 units ($99,000) if the
person is a corporation).
New section 5F defines the
concept of passing over a telecommunications system. It
clarifies that a communication that is passing over a
telecommunications system continues to do so until it can be
accessed by the intended recipient of the communication.
New section 5G defines
intended recipient as follows:
-
where the communication is addressed to a person who is an
individual, the intended recipient is that individual. This
definition applies whether the individual is acting in his or her
own capacity or as the employee or agent of another
-
where the communication is addressed to a person who is
not an individual such as a corporation, partnership, association
or other group of persons, the intended recipient is any person
within it who is able to access communications sent via that
address
-
where the communication is not addressed to a person but is sent
to a generic address (such as an email address), the intended
recipient is any person, or any employee or agent of the person,
who has control over the telecommunications service to which the
communication was sent.
New subsection 5H(1) provides
that a communication is accessible to the intended recipient when
it has been received by or has been delivered to the
telecommunications service of the intended recipient, or is under
the control of the intended recipient. New subsection
5H(2) ensures that new subsection (1) is not a
prescriptive definition, and therefore does not limit the
circumstances in which a communication is accessible to the
intended recipient. The Explanatory Memorandum notes that:
This definition is intended to be read broadly, to
ensure that a communication is a stored communication even if the
intended recipient has not obtained the content of the
communication or is not even aware that the communication
exists.
Accessible simply means that the communication is
available to the intended recipient via their telecommunications
device. It does not require that the intended recipient has read or
listened to the communication, nor does it require the intended
recipient to be aware of its existence. For example, an e-mail that
is delivered to the inbox of an intended recipient is accessible
even if the person is unaware of its presence or indeed not
physically able to access the communication. (19)
This
raises the question of the undeliverable email. Presumably it will
be able to be accessed under the new stored communication
warrant.
Item 3 inserts new
section 6AA into the Act, which defines the concept of
accessing a stored communication to mean listening to,
reading or recording a stored communication, by means of equipment
operated by a carrier, without the knowledge of the intended
recipient. The Explanatory Memorandum notes:
The reference to the knowledge of the intended
recipient is designed to protect the privacy of the communication
before such time as the communication becomes accessible to the
intended recipient. The requirement for knowledge also preserves
the ability of law enforcement agencies to access stored
communications held by a carrier where they do so with the
knowledge of the intended recipient. For example, an enforcement
agency may use its existing notice to produce at the carrier where
they have notified the intended recipient that they intend to
access the communications in this manner. This distinction means
that enforcement agencies are regulated by the stored
communications regime only when they are acting covertly in the
access to these communications. When acting overtly, existing
access and compulsion powers of the enforcement agencies remain
applicable.(20)
The reference to by means of equipment
operated by a carrier reinforces the fact that the prohibition on
accessing stored communications only relates to accessing these
communications via the carrier.
In all other aspects, this definition is based
on the definition of intercepting a communication in section 6 of
the Act.
Item 4 inserts a new
section 6DB into the Act which provides that the Minister
responsible for the administration of the Act can, by writing,
appoint as an issuing authority a judge of the federal court,
including a judge of the Federal Court of Australia, Family Court
of Australia or a Federal Magistrate, or a magistrate where those
persons have consented in writing to be appointed as an issuing
authority.
The amendment will also allow the Minister to
appoint a person who holds an appointment to the Administrative
Appeals Tribunal as Deputy President, full-time senior member,
part-time senior member or member (including a part-time or
full-time member), who is enrolled, and has been enrolled for at
least 5 years, as a legal practitioner of a federal court or of the
Supreme Court of a State or Territory. The appointment of AAT
members as issuing authorities rather than judges has been the
subject of strong criticism as noted below in the Concluding
Comments to this Digest, and above at pages 7-9.
The addition of Commonwealth judicial officers
as possible issuing authorities may raise Constitutional issues, as
has been canvassed in the context of Division III of the ASIO
Act and the Anti-Terrorism (No. 2) Act 2005.
In summary, the High Court discussed how incompatibility issues
might prevent a judge from exercising non-judicial functions even
when that function was conferred persona designata and by consent
in Grollo v. Palmer. The incompatibility condition
stipulates that no function can be conferred that is incompatible
either with the judge s performance of his or her judicial
functions or with the proper discharge by the judiciary of its
responsibilities as an institution exercising judicial power
.(21) In relation to State judicial officers, see
further the decision of Kable v DPP (NSW) (1996) 189 CLR
51.
Item 5 inserts new
section 6EB into Part 1A of the Act, which defines
stored communications warrant information to mean
information about an application for, the issue of, the existence
or non-existence of, or the expiry of a stored communications
warrant, or any other information which is likely to identify the
telecommunications service, or the person of interest, to which a
stored communications relates. Stored communications warrant
information is subject to a general prohibition against disclosure
in new section 133 of the Act.
This definition is based on the definition of
designated warrant information in section 6E and
is intended to ensure that information about agency investigations
is not disclosed.
Items 6, 7 and 8 insert
new subsections 9(1A), 9A(1A) and
10(1A) which will allow the ASIO to access stored
communications in the same manner it is able to intercept
communications under a telecommunications service warrant or a
named person warrant under the warrant regime in existing Chapter 2
of the Act, or warrant issued by the Director-General of Security
in the emergency circumstances to which section 10 of the Act
apply.
Item 9 introduces new
Chapter 3 into the Act, which establishes the general
prohibition on accessing stored communications, the warrant regime
exception for enforcement agencies and the accountability and
oversight mechanisms.
The Explanatory Memorandum notes that with the
introduction of the stored communications regime, the Act is to be
restructured into Chapters to deal with interception and stored
communications separately, although many provisions are
mirrored.(22) Part 2 of Schedule 1 to the Bill contains
many technical amendments to the Act to reflect this new
structure.
New Part 3-1 creates a
general prohibition on access to stored communications and includes
a number of exceptions to this general prohibition.
New section 108 creates a
general prohibition on access to stored communications reinforced
by an offence, punishable by imprisonment for up to two years or a
fine of 120 penalty units or both, of accessing a stored
communication without the knowledge of the intended recipient of
the communication. The offence extends to accessing that
communication, authorising, suffering or permitting another person
to access that communication, or doing any act or thing which
enables another person to access a stored communication.
The Explanatory Memorandum notes:
This offence reflects the offence of intercepting
a communication as set out in section 7, while reiterating the
requirement that the conduct be done without the knowledge of the
intended recipient. Importantly, the penalty for the commission of
this offence is the same as the penalty for the unlawful
interception of a communication, illustrating that the unauthorised
access of the content of a person s communication is equally
serious, regardless of the method of access.(23)
New subsection 108(2) sets
out a number of exceptions to this general prohibition:
-
where the access is authorised by a stored communications
warrant
-
where the access is authorised by an interception warrant
-
where the conduct is done pursuant to a warrant issued
under section 25A of the Australian Security and Intelligence
Organisation Act 1979
-
where the conduct is done by an employee of a
carrier in the course of his or her duties, and where that conduct
is reasonably necessary to perform those duties effectively
-
where the conduct is done by a person as part of the
installation, connection or maintenance of equipment, and where
that conduct is reasonably necessary to perform those duties
effectively
-
where the conduct is done by a person as part of the
installation, connection or maintenance of equipment to be used to
access stored communications under a stored communications or
interception warrant, where that conduct is reasonably necessary to
perform those duties effectively; or
-
where the access results from, or is incidental to, the
actions of an employee of ASIO in lawfully determining the
existence and location of a particular listening device.
New subsection 108(3)
clarifies that an interception warrant only authorises access to
stored communications (the exception set out in new paragraph
(2)(b)), where the interception of the communication would have
been authorised by the interception warrant, had that warrant been
in effect at the time the communication was sent.
New subsection 108(4)
provides that, in determining whether conduct was reasonably
necessary for a person to perform his or her duties effectively, a
court is to have regard to such matters (if any) as are specified
in the regulations.
New Part 3-2
inserts new section 109 which ensures that ASIO is
able to use its existing telecommunications interception warrants
to obtain access to stored communications. Under the existing
Chapter 2 of the Act, the Attorney-General may issue warrants to
ASIO to intercept communications where the communications are being
used by a person who is reasonably suspected of engaging in
activities prejudicial to security, and the interception will, or
is likely to, assist ASIO in its function of obtaining intelligence
relevant to security.(24)
The Explanatory Memorandum notes:
Any new warrant regime which would permit the
Organisation to access stored communications would still require
the Attorney-General to be the issuing authority, would still need
to have the person of interest reasonably suspected of engaging in
activities prejudicial to security and would still need to be
likely to assist the Organisation in its function of obtaining
intelligence relevant to security. As this is the same threshold as
is currently required for an interception warrant, and interception
warrants permit access to stored communications, there is no need
for a separate stored communications warrant for the benefit of the
Organisation.(25)
New Part 3-3 sets out the
warrant regime for enforcement agencies to access stored
communications. The provisions mirror existing Part VI of Chapter 2
of the Act which permits law enforcement agencies to intercept
telecommunications.
However, as the Explanatory Memorandum states,
unlike ASIO, enforcement agencies will obtain a clear benefit from
a separate warrant regime to access stored communications. Key
differences are set out at p. 12:
- Additional agencies can obtain access.
Only law enforcement agencies, being those agencies specifically
tasked to investigate criminal matters (including the Australian
Federal Police, the Australian Crime Commission, the Police Forces
of each State and Territory, and various other criminal
investigatory bodies investigating serious crime and corruption),
are able to obtain interception warrants. However, stored
communications warrants may be accessed by all enforcement agencies
as defined in section 282 of the Telecommunications Act
1997, which includes all the law enforcement agencies, as well
as all agencies responsible for administering a law imposing a
pecuniary penalty or administration of a law relating to the
protection of the public revenue. This will include such additional
Commonwealth agencies as the Australian Customs Service, the
Australian Tax Office, and the Australian Securities and
Investments Commission. Similar State and Territory agencies are
also included.
- There is a wider range of issuing
authority. Whereas interception warrants may only be issued by
eligible judges or nominated AAT members, stored communications
warrants may be also be issued by these authorities as well as any
other Commonwealth, State or Territory judge or magistrate.
- There is a lower threshold to be met.
Interception warrants are only available in relation to specified
serious offences, as defined in subsection 5(1). While these
are varied in terms of their penalties, the general rule is that
they relate to offences with a maximum term of imprisonment of at
least seven years. In contrast, stored communications warrant
are available for the investigation of these serious offences as
well as offences with a penalty of imprisonment for a maximum
period of at least three years or a pecuniary penalty of at least
180 penalty units for individuals and at least 900 penalty units
for corporations.
- In addition, stored communications warrants
can be obtained as part of statutory civil proceedings which
would render the person of interest to a pecuniary penalty of at
least 180 penalty units for individuals and at least 900 penalty
units for corporations. Consistent with the lower threshold, stored
communications that have been lawfully accessed can be used as part
of the investigation of matters with a lower threshold (at least
one year imprisonment or at least 60 penalty units for individuals
(300 penalty units for corporations).
- Reflecting the wider agency access and the lower
threshold to be met, the reporting requirements for stored
communications warrant are not as burdensome on the agencies as the
requirements for interception. Reduced reporting requirements
are also consistent with general search warrants provisions.
(emphasis added)
New Division 1 of new
Part 3-3 sets out the requirements for a valid
application by an enforcement agency to an issuing authority for a
stored communications warrant.
New section 110 provides that
in the case of an interception agency, a warrant may be applied for
by those officers or members of the agency that may apply for a
telecommunications interception warrant (see existing section 39 of
the Act).
In relation to other enforcement agencies, an
application for a stored communications warrant may be made by a
chief executive officer or person acting in that position, or a
person nominated by the chief executive officer.
New section 110 provides that
an agency may apply for a warrant authorising access to stored
communications in respect of a person, similar to named person
interception warrant. A stored communications warrant may authorise
access to stored communications in relation to more than one
telecommunications service. The Explanatory Memorandum gives as an
example that a stored communications warrant may authorise access
to all SMS messages sent to and from a specified mobile telephone
number and all emails sent to and from a specified email
address.(26)
New sections 111 to 115 deal
with the form of the warrant. The warrant must be in writing
unless, because of urgent circumstances, the applicant thinks it
necessary to apply by telephone with reasons for the urgency
(new sections 111 and 114); the application must
state the name of the agency and applicant (112);
the matters that must be included in an affidavit in support of an
application for a stored communications warrant are set out,
including the facts or grounds on which the application is based
(113).
New section 115 provides the
issuing authority with the power to request further information,
and the form in which the further information must be given.
New section 116 mirrors
section 46 of the existing Act in relation to the issue of
interception warrants. It provides that an issuing authority may
issue a stored communications warrant if he or she is satisfied of
the following matters:
-
that the administrative requirements set out in new sections 110
to 115 have been complied with
-
where the application was made by telephone, that the
urgency of the situation justified a telephone application
-
that there are reasonable grounds for suspecting that a
particular carrier holds stored communications for whom the
identified person is the sender or the intended recipient
-
that information that could be obtained from those stored
communications would be likely to assist in the investigation of a
serious contravention;(27) and
-
having regard to the matters listed in new subsection
(2), and no other matters, that a stored communications warrant
should be issued.
New subsection 116(2)
provides an exhaustive list of the matters that an issuing
authority can consider, which are the same as the matters that can
be considered in relation to an interception warrant. They include
the impact on privacy, the gravity of the serious contravention,
the likely value of the information that could be obtained and a
comparison of other methods of investigation.
New section 117 confirms that
a stored communications warrant authorises access to stored
communications for persons approved under new subsection
127(2) to stored communications that came into existence
before the warrant is first issued and that are still held by the
carrier.
New section 118 states the
requirements for the form and content of a stored communications
warrant. New section 119 provides the time for
which a stored communications warrant is in force. This is until it
is first executed, or five days after the day of which it was
issued, whichever occurs first, per communications carrier. The
period cannot be extended (new subsection
119(3)), but a further warrant can be issued in respect of
the same person after a delay of three days (subsections
119(4) and (5)).
Sections 120 to 124 in a
new Division 3 of new Part 3-3, contain provisions
dealing with notification and revocation of stored communications
warrants.
Sections 125 to 132 in a
new Division 4 of new Part 3-3, sets out other
provisions relating to the authority conferred by warrants.
New section 132 creates an offence of obstructing
or hindering, without a reasonable excuse, a person acting under
the authority of a stored communications warrant. The offence is
punishable by imprisonment for 6 months, or 30 penalty units, or
both.
New Part 3-4 provides a
general prohibition against dealing with accessed information,
subject to some permitted dealings. It also includes provisions
relating to the admissibility of evidence and the destruction of
records. New section 133 creates a general offence
for communicating, making use of, making a record of or giving as
evidence, lawfully accessed information, or information obtained by
accessing a stored communication in contravention of new section
108 or stored communications warrant information. The penalty for
this offence is imprisonment for two years, 120 penalty units, or
both, which is uniform with the twin offence for interception.
New Division 2 of new Part
3-4 provides the following exceptions to the
prohibition on dealing with accessed information:
-
for the purposes of applying for, or being issued, a stored
communications warrant
-
for permitting inspection of stored communications
warrants
-
for making reports to the Minister about stored
communications warrants (new section 134)
- for an employee of a carrier to provide the information
to the agency in relation to whom a warrant has been issued, to
assist with the operation of a network or to assist in lawful
access to a stored communication (new section
135)
-
in connection with the performance by ASIO of its
functions (new section 136)
-
for the purposes of communicating information obtained by
ASIO (new section 137)
-
for an employee of a carrier, to communicate accessed
information to an enforcement agency for the purposes of an
investigation of a serious offence, and for no other purpose
(new section 138)
-
to communicate, use or record accessed information for the
purposes of an investigation by the agency of a contravention which
is a serious offence, or is punishable by a maximum period of at
least 12 months or by a maximum fine of at least 60 penalty units
(new section 139)
-
for a person to communicate accessed information to the
Attorney-General, Director of Public Prosecutions, Commissioner of
the Australian Federal Police, or Chief Executive Officer of the
Australian Crime Commission if the information is believed to
establish that a particular offence has been committed (new
section 140)
-
to give lawfully accessed information and stored communications
warrant information in evidence in an exempt proceeding
(new section 143) Exempt proceeding is
defined in section 5B of the Act. There is discretion to admit
unlawfully accessed stored communications information into evidence
in an exempt proceeding where the accessed information was
purportedly under an irregular stored communications warrant under
new section 144.(28)
New subsection 150(1)
requires the chief officer of an enforcement agency to cause the
destruction of information or a record obtained by accessing a
stored communication. This is where the chief officer is satisfied
that the material is no longer required in relation to the purposes
of the agency providing an annual report on destruction activity to
the Minister referred to in new subsection
150(2).
New Part 3-5 establishes an
oversight regime for the records to be maintained by enforcement
agencies in connection with the use of stored communications
warrants.
New section 151 requires the
chief officer of an enforcement agency to cause to be kept in the
agency s records, each stored communications warrant obtained by
the agency, and each revocation instrument, evidentiary
certificate, and authorisation in relation to the warrant. Further,
the records must include particulars of the destruction of
information obtained pursuant to the warrant.
New section 152 in
new Division 2, provides that the Ombudsman can
inspect an enforcement agency s records in order to ascertain
compliance with its record-keeping obligations, and can do anything
incidental or conducive to that function.
New subsections 153(1) and
(2) provide that within three months of the end of each
financial year the Ombudsman will report to the Minster about the
inspections conducted during the financial year of an enforcement
agency s stored communications records. New subsection
153(4) provides the Ombudsman with an ability to report to
the Minister at any time about the results on an inspection under
this new Division, and must do so if requested by the Minister.
New subsection 153(3) provides that the Ombudsman
may report to the Minister any contravention of a provision of this
Act
New subsection 153(5) obliges
the Ombudsman to provide a copy of a report under subsections
153(1) or (3) to the chief officer of the relevant enforcement
agency.
New section 154 confirms the
general powers of the Ombudsman in relation to inspections as
provided by the Ombudsman Act 1976 but they remain subject
to section 133 of the Act which provides a general prohibition
against dealing with accessed information or stored communications
warrant information.
New section 155 provides that
the general prohibition against dealing with accessed information
or stored communications warrant information does not prevent the
disclosure of information to the inspecting officer for the
purposes of an inspection under this new Part, nor does section 133
prevent making a record of the information for that purpose.
New section 156 provides that
an inspecting officer may use, record or communicate information
for the purposes of an inspection of an enforcement agency s
records despite section 133 of the Act.
New subsection 157(1)
provides that section 11A of the Ombudsman Act 1976
regarding the power of the Federal Court of Australia to determine
matters of the Ombudsman s powers does not apply to the proposed
exercise of a power or function by the Ombudsman under this new
Division.
New subsection 157(2)
provides that section 19 of the Ombudsman Act 1976
regarding annual reporting to Parliament does not apply to any act
or omission of an inspecting officer under this new Division.
However, new subsection 157(3) provides that
subsection 35(2), (3), (4) and (8) of that Act dealing with the
confidentiality requirements for inspecting officers do apply for
the purposes of this Division (subject to new section 155).
New section 158 provides that
the Ombudsman may give or receive information to those State
inspecting authorities that have the function of inspecting the
individual enforcement agency s compliance with the
telecommunications interception regime. The effect of this
provision is to enable the Ombudsman to communicate any accessed
information to a State inspecting authority if it is relevant to
the performance of the State inspecting authority s functions.
New Part 3-6 imposes
requirements on enforcement agency s to provide an annual report to
the Minister regarding the use of stored communications
warrants.
New Division 1, new section
159 obliges the chief officer of an enforcement agency to
provide the Minister with a report on the use of stored
communications warrants. The information required is set out in
new Division 2 of this Part. The report must be
provided within three months after the end of each financial
year.
New section 160 provides that
the Minister may seek information from the chief officer of an
enforcement agency additional to that provided under new section
159. To the extent that it is practicable, the chief officer must
comply with the request of the Minister.
New Division 2, new section
161 requires the Minister to cause to be prepared an
annual report regarding the use of stored communications warrants
in each financial year. The information to be included in this
annual report is set out in new section 162;
including
-
for each enforcement agency, the statistics on how many stored
communication warrant applications were made, and how many
applications were made by telephone
-
statistics for each enforcement agency regarding the number of
arrests made on the basis of accessed information or the number of
proceedings that ended during the reporting year in which accessed
information was used, and
-
a total figure for all enforcement agencies
regarding how many stored communication warrant applications were
made, how many applications were made by telephone, how many
renewal applications were made, and how many stored communications
warrants were issued with conditions or restrictions.
New Division 3, new section
164 obliges the Minister to table the annual report before
each House of the Parliament within fifteen sitting days of its
preparation.
New Part 3-7 provides the
same civil remedies for unlawful access to stored communications
and unlawful disclosure of accessed information as are available
for unlawful interception under Chapter 2 of the Act.
New section 165 provides that
an aggrieved person a party to the communication or a person on
behalf of whom the communication was made may apply for civil
remedial relief against a person who unlawfully accessed the
relevant communication. New subsection 165(7)
provides a list of orders that may be made upon application for
relief. A criminal court may also provide
criminal remedial relief upon application of an aggrieved person if
the court convicts a person of unlawful access.
New section 165 further
provides that an aggrieved person may apply for civil remedial
relief for communication of the accessed information. A criminal
court may also provide criminal remedial relief upon application of
an aggrieved person if the court convicts a person of unlawful
communication of accessed information.
New subsection 165(11)
provides that the section does not apply to unlawful access that
occurred as a result of a defect or irregularity in connection with
the stored communications warrant documentation or the execution of
the warrant.
New section 166 provides the
limitation periods in respect of remedial relief six years after
the unlawful access or unlawful communication. An application for
criminal court relief must be made as soon as practicable after the
conviction occurred.
New section 167 provides that
this new Part does not limit the criminal or civil liability of a
person under any other law. Further, the section provides for an
aggrieved person to seek remedial relief in relation to an offence
arising out of this Act.
New section 168 preserves the
operation of any law of a State or Territory that is capable of
operating concurrently with this Part. For example, any State or
Territory legislation that seeks to regulate lawful access to
communications held other than by a carrier, is preserved by the
section to the extent that it is able to operate concurrently.
New section 169 clarifies
that nothing in this new Part enables an inferior court of a State
or Territory to grant remedial relief that it is otherwise unable
under the laws of that State or Territory to provide.
New section 170 overrides
section 19B of the Crimes Act 1914 so that remedial relief
is available from a criminal court once a defendant has been
convicted of unlawful access or unlawful communication, even if the
court proceeds not to record a conviction.
New Part 2 includes
amendments that are consequential upon the change of name of the
Act to the Telecommunications (Interception and Access) Act
1979, and the inclusion of new definitions and concepts from
this Bill into cross-referenced sections of other legislation.
Schedule 2 B-party
interception
Item 1 inserts a new
subparagraph 9(1)(ia) into the Act which will allow the
Attorney-General to issue a warrant under existing section 9 to
ASIO which authorises the interception of the means by which a
person receives or sends a communications from or to another person
who is engaged in, or reasonably suspected by the Director-General
of Security of being engaged in, or of being likely to engage in
such activities.
Items 4 and 5 amend
subsection 9B(3) to provide that the time period for a B-Party
warrant issued to ASIO by the Attorney-General must not exceed 3
months. Item 10 would amend existing subsection
49(3) to provide that the time period for a B-Party warrant issued
to the agency by an eligible judge or nominated AAT member must not
exceed 45 days.
Item 6 amends existing
subsection 46(1) to provide that the preconditions in paragraphs
(a) to (c) must each be separately met prior to the issue of an
interception warrant.
Item 7 amends existing
subsection 46(1) of the Act to provide that a telecommunications
service warrant can be issued in relation to a person who is
involved in the commission of an offence, or a person who
communicates with such a person.
Items 8 and 9 insert a
new subsection 46(3) which provides that an
eligible judge or nominated AAT member must not issue a
telecommunications service warrant for a B-Party warrant unless he
or she is satisfied that the agency has exhausted all other
practicable methods of identifying the telecommunications services
used, or likely to be used, by the person involved in the serious
offence or serious offences, or where the interception of a
telecommunications service used, or likely to be used by that
person, is not practicable.
The Explanatory Memorandum notes that:
This means that, for example, where an undercover
police operative is provided a mobile handset to communicate with
the suspect by the suspect and the interception of the suspect s
services is not practical because the service cannot be readily
identified. The telecommunications of the undercover operative
would be able to be intercepted under section
46.(29)
Item 2 inserts a definition
of telecommunications device into the Act.
Telecommunications device means a terminal device that is capable
of being used for transmitting or receiving a communication over a
telecommunications system .
The Explanatory Memorandum states that a
terminal device is any end piece of telecommunications equipment by
which a person may communicate, including a mobile handset,
personal computer, or personal digital assistant , but it is not
currently defined in the existing Act or current
Bill.(30)
Item 3 inserts a definition
of telecommunications number into the Act. The
telecommunications number is a means by which interception agencies
may identify the telecommunications device which is to be the
subject of an interception warrant.
The Explanatory Memorandum states:
A telecommunications device may be identified by
any unique number including a telephone number for mobile phone
handsets, a Media Access Control address for computer terminals, or
an e-mail address. The definition of telecommunications number is
inclusive so as not to limit the unique numbers which may be used
to identify telecommunications devices, thereby maintaining a
technology neutral approach to the regulation of telecommunications
interception.(31)
Item 4 provides that a
telecommunications device may be identified by a unique
telecommunications number or any other unique identifying
factor.
Item 5 repeals and
substitutes existing subsection 9A(1) of the Act to include
interception on the basis of a telecommunications device. This
subsection provides that the Attorney-General may issue a named
person warrant to ASIO for the purposes of obtaining intelligence
in relation to security.
Item 7 requires that the
Director-General of Security include in an application for a
warrant under section 9A a description of the telecommunications
device sufficient to identify the telecommunications device used or
likely to be used by the person of interest. The telecommunications
device may be described by reference to a unique telecommunications
number of other unique number.
Item 8 provides that before
issuing a warrant to intercept a device to ASIO, the
Attorney-General must be satisfied that ASIO has no practicable
methods of identifying the telecommunications service to be
intercepted at the time of the application, or that interception of
the telecommunications service would be impracticable.
Item 9 repeals and
substitutes existing subsection 11B(1) of the Act to include
interception on the basis of a telecommunications device. Section
11B allows the Attorney-General to issue a named person warrant to
the Organisation for the purposes of obtaining foreign intelligence
relating to a matter specified in the notice. As per Items 7 and 8,
Item 11 requires that the Director-General of
Security include in an application for a warrant under 11B a
description of the telecommunications device sufficient to identify
the telecommunications device, which may be a unique number; and
Item 12 provides that the Attorney-General must be
satisfied that ASIO has no practicable methods of identifying the
telecommunications service to be intercepted at the time of the
application, or that interception of the telecommunications service
would be impracticable.
Item 13 amends the
notification requirements in section 16 of the Act to remove the
requirement to identify the telecommunications service to be
intercepted when applying for named person warrants.
Item 14 amends the
notification requirements in section 16 of the Act to oblige a
certifying person of ASIO to provide the Managing Director of a
carrier with a written description sufficient to identify any
telecommunications device to be intercepted if that
telecommunications device is not identified on the warrant. This
provision recognises that named person warrants may authorise
interception of multiple telecommunications devices. Items
15 and 16 further oblige a certifying officer of ASIO to
inform the Managing Director of a carrier where the
Director-General is satisfied that interception of a
telecommunications device is no longer required.
Items 22 to 24 make the same
amendments to notification requirements in section 60 of the
Act.
Item 20 repeals and
substitutes paragraph 46A(2)(a) of the Act which requires the
issuing authority to have regard to the interference with the
privacy of the person of interest by authorising interception of
the person s services or telecommunications devices .
Item 21 adds the criteria
outlined in item 7 for an interception agency when
seeking interception on the basis of a telecommunications device
operated by the person of interest.
The Explanatory Memorandum notes in relation
to this Schedule:
The amendment will require the issuing of all
interception warrants to have regard to privacy considerations.
Previously, only class 2 interception warrants required an eligible
judge or nominated AAT member to have regard to the privacy
considerations.
These amendments are designed to simplify a
complex area of the interception regime and enhance the privacy
underpinnings of the Act.(32)
Items 1 and 2 repeal the
definitions of class 1 and class 2 offences in subsection 5(1) to
reflect the insertion of a new definition of serious offence. The
new definition of serious offence will incorporate all offences
defined as class 1 and class 2 offences.
Items 3 to 12, and
Items 14 to 20 make consequential amendments to
the Act to reflect the amendment.
Item 13 inserts a new
subsection 5D(7) which ensures that it is a serious offence for the
purposes of the interception regime if an offence is constituted by
receiving or assisting a person who is, to the offender s
knowledge, guilty of a serious offence, which was previously a
class 1 offence as outlined in subsection 5D(1), in order to enable
the person to escape punishment or to dispose of the proceeds of
the offence.
Items 31 to 34 are
transitional provisions that save the validity and operation of
warrants issued under sections 45, 46 and 48.
The Blunn Report recommended the removal of
the Telecommunications Interception Remote Authority Connection
(TIRAC) function exercised by the Telecommunications Interception
Division of the Australian Federal Police (AFP) from the Act. The
proposed amendments would also transfer the function of compiling
the registers to the Secretary of the Attorney-General s
Department.
The Explanatory Memorandum states:
TIRAC is a historical electronic accountability
mechanism which requires each interception agency to lodge its
interception warrants with the AFP. The effect of this function is
that the warrants do not take effect until the AFP receives the
warrant and notifies the Managing Director of the carrier of the
issue of the warrant. TIRAC s utility has been exhausted by
technological developments, and it is therefore proposed that it be
removed from the Act.
The proposed amendments will continue to require
all agencies to maintain comprehensive records as part of the
interception regime, however, interception agencies will no longer
be required to notify the AFP of the issue of the warrant before it
takes effect.(33)
Item 5 removes the reference
to the AFP in subsection 52(2). The effect of the item is to notify
the Secretary of the Department of a proposed revocation and
provide a copy of that revocation to the Secretary of the
Department.
Item 6 amend paragraphs
52(2)(a) and (b) to transfer the requirement to notify the
Commissioner of Police about the issue of an interception warrant
to the Secretary of the Department.
Item 7 omits reference to the
AFP in subsection 53(1) thereby requiring all interception
agencies, including the AFP to notify the Secretary of the
Department of the issue of a telecommunications interception
warrant.
Item 8 would amend paragraphs
53(1)(a), (b) and (c) to transfer the requirement to notify the
Commissioner of Police about the issue of an interception warrant
to the Secretary of the Department.
Items 11 and 12 amend
existing subsections 57(1) and (2), and paragraphs 57(3)(a) and (b)
to transfer the requirement to notify the Commission of Police
regarding the revocation of a warrant to the Secretary of the
Department.
Items 16 and 17 amend section
59 and paragraph 60(2)(a) to transfer the requirement to notify the
Commission of Police regarding the revocation of a warrant to the
Secretary of the Department.
Items 25 and 29 are saving
provisions which preserve the General Register of Warrants and the
Special Register of Warrants maintained by the Commissioner of
Police as the General Register of Warrants and the Special Register
of Warrants maintained by the Secretary of the Department after the
commencement of this item.
Item 1 would amend the
definition of permitted purpose of the Act by amending subparagraph
5(1)(f)(ii). A permitted purpose in the case of the Office of
Police Integrity will mean a purpose connected with an
investigation by the Director, Police Integrity under the Victorian
Police Regulation Act or the Whistleblowers Protection
Act, into serious misconduct (which includes corrupt conduct),
together with any report on such an investigation.
The Explanatory Memorandum states:
This means that, under section 67 of the Act, the
Director, Police Integrity may disclose lawfully intercepted
information to another person but only for a purpose connected with
an investigation by the Director, Police Integrity under the Police
Regulation Act or the Whistleblowers Protection Act into the
conduct of a member of the force or into serious misconduct (which
includes corrupt conduct), together with any report on such an
investigation.(34)
In September 2005 the Commonwealth and
Victorian governments resolved a dispute over access by the
Victorian Office of Police Integrity to telecommunications
interceptions, including phone tap powers. The Office of Police
Integrity was established in November 2004 by the Victorian
Government to combat police corruption and serious misconduct. The
Victorian Ombudsman, George Brouwer, was appointed to run the new
body at the same time as continuing in his role as Ombudsman. The
Federal Government initially refused to grant the new body
telecommunications interception powers, arguing that Mr Brouwer
would have a conflict of interest since one of his functions as
Ombudsman is to oversee and investigate complaints about use of
such powers.
Item 4 amends paragraph 5D(4)
to update the reference to the New South Wales money laundering
offences to which an interception agency can apply for an
interception warrant. Due to a legislative change in New South
Wales, the money laundering offences were relocated from the
Confiscation of Proceeds of Crime Act 1989 (NSW) into the
Crimes Act 1900 (NSW).
Item 5 will repeal subsection
6(2). Section 6(2) creates an exception to the general prohibition
in subsection 7(1) against the interception of a communication in
its passage over the Australian telecommunications system. At the
commencement of the Act, subsection 6(2) was intended to exempt the
activities of telecommunications carriers and employees of carrier
from the general prohibition contained in subsection 7(1) to allow
the testing of the carrier s equipment to ensure that the
telecommunications network and associated equipment operated
correctly. The Explanatory Memorandum states that subsection 6(2)
no longer has application in the deregulated telecommunications
market and its continued application undermines the strict privacy
protections contained in the Act is based .(35)
Items 7 and 9 correct
drafting errors within the Act which have been the result of
previous amendment Acts.
Item 8 amends subsection
55(5) of the Act to clarify and make retrospective that an employee
of a carrier can provide technical assistance to a law enforcement
agency, or officer, when such an agency or officer is executing an
interception warrant on a carrier and throughout the consequent
interception. This amendment was necessary in light of the decision
of the South Australian District Court in the case of R v
Sutton and Rodgers (Simpson J, District
Court of South Australia, unreported, 10 February 2003).
The TI Act did need revision to keep up to
date with technological advances. The move to provide specific
warrants for stored communications is welcome, if possibly overdue,
as it had been argued strongly in the Senate that privacy concerns
were not appropriately addressed by ordinary search warrants.
Electronic Frontiers Australia stated in
relation to the 2002 Bill that:
The changes are the same as deciding that postal
mail remains protected from interception while being delivered by
the postman and transported in Australia post vehicles, but not
while stored in Australia Post premises awaiting
delivery.(36)
However, it could be argued that the wider and
easier access of enforcement agencies to stored communication is
unwarranted (note discussion of new Part 3.3
above). As the Explanatory Memorandum states, enforcement agencies
will obtain a clear benefit from a separate warrant regime to
access stored communications. Key differences are set out at p.
12:
-
Additional agencies can obtain access. Only law enforcement
agencies, being those agencies specifically tasked to investigate
criminal matters (including the Australian Federal Police, the
Australian Crime Commission, the Police Forces of each State and
Territory, and various other criminal investigatory bodies
investigating serious crime and corruption), are able to obtain
interception warrants. However, stored communications warrants may
be accessed by all enforcement agencies as defined in section 282
of the Telecommunications Act 1997, which includes all the
law enforcement agencies, as well as all agencies responsible for
administering a law imposing a pecuniary penalty or administration
of a law relating to the protection of the public revenue. This
will include such additional Commonwealth agencies as the
Australian Customs Service, the Australian Tax Office, and the
Australian Securities and Investments Commission. Similar State and
Territory agencies are also included.
-
There is a wider range of issuing authority. Whereas
interception warrants may only be issued by eligible judges or
nominated AAT members, stored communications warrants may be also
be issued by these authorities as well as any other Commonwealth,
State or Territory judge or magistrate.
-
There is a lower threshold to be met for stored communication
warrants versus interception warrants. Interception warrants are
only available in relation to specified serious offences, as
defined in subsection 5(1). While these are varied in terms
of their penalties, the general rule is that they relate to
offences with a maximum term of imprisonment of at least seven
years. In contrast, stored communications warrant are
available for the investigation of these serious offences as well
as offences with a penalty of imprisonment for a maximum period of
at least three years or a pecuniary penalty of at least 180 penalty
units for individuals and at least 900 penalty units for
corporations.
-
stored communications warrants can be obtained as part of
statutory civil proceedings which would render the person of
interest to a pecuniary penalty of at least 180 penalty units for
individuals and at least 900 penalty units for corporations.
Consistent with the lower threshold, stored communications that
have been lawfully accessed can be used as part of the
investigation of matters with a lower threshold (at least one year
imprisonment or at least 60 penalty units for individuals (300
penalty units for corporations)
-
reporting requirements for stored communications warrant
are not as burdensome on the agencies as the requirements for
interception.
The presumption is that a communication is
less private because it is in an unread email, voicemail or text
rather than verbally delivered over the phone. One issue is whether
the range and threshold of access should be lowered and reporting
made less onerous because of the technical difference that a
communication has already passed over a carrier. There is also the
key public policy issue about whether information obtained this way
should be admissible in a civil proceeding.
The added privacy protection given to more
traditional methods of communication may be the product of
generational custom rather than logic. It is questionable whether
young Australians would see text messages and emails as less
private than live phone conversations or the postal service.
The changes to B-Party intercepts may be seen
as simply clarifying the circumstance argued in the
Flanagan case in the Federal Court, discussed above, or it
may be seen as introducing an intrusive new power that
unnecessarily erodes the privacy of innocent third parties.
The amendments relating to Schedule 4 serious
offences can be seen as beneficial legislation as they add privacy
considerations to the list of issues an issuing authority can
consider.
The Bill has raised considerable anxiety in
the press and minority parties which may be attributable to wider
concerns about government surveillance of Australian citizens and
privacy issues. The Attorney-General referred a review of the
Privacy Act 1988 to the Australian Law Reform Commission
(ALRC) on 31 January 2006 with a final report due by 31 March. The
ALRC should have regard to:
the rapid advances in information, communication,
storage, surveillance and other relevant technologies
possible changing community perceptions of privacy
and the extent to which it should be protected by legislation
the expansion of State and Territory legislative
activity in relevant areas, and
emerging areas that may require privacy
protection.(37)
Finally, this Bill
was introduced on 15 February 2006 and is listed for debate in the
House of Representatives on 28 February 2006. Parliament may wish
to consider whether Bills of this type which have considerable
technical detail and raise ongoing issues of debate, such as
privacy rights, might require more time for consideration by
Members.
-
Explanatory Memorandum, at pp. 1 2.
-
The Telecommunications (Interception) Amendment (Stored
Communications) Bill 2004 was originally introduced on 27 May 2004.
This Bill lapsed when the 40th Parliament was prorogued for the
October 2004 general election. The Bill was re-introduced in
identical form on 17 November 2004.
-
Tom Allard and Louise Dodson, Proposed phone-tapping powers come
under fire from all sides , Sydney Morning Herald, 16
February 2006, p. 4.
-
Anthony Blunn, August 2005.
-
ibid, at p. 75.
-
ibid, at p. 77.
-
Flanagan, at pp. 201 2.
-
Flanagan v AFP (1996) 60 FCR 149 at p. 76.
-
Blunn, op cit, at p. 76.
-
Explanatory Memorandum, at p. 34.
-
ABC Radio, Civil liberties spokesperson discusses proposed
changes to telecommunications interception laws , AM, 15
February 2006.
-
Mike Jeffreys, Civil libertarians are alarmed at new police
phone tap powers , Radio 2CC, 16 February 2006.
-
Brendan Nicholson, Proposal to tap innocent people unwarranted ,
The Age, 16 February 2006, p. 6.
-
NSW Council of Civil Liberties, Australian phones 26-times more
likely to be bugged than an American phone , media
release, 13 January 2006. Making AAT Members issuing
authorities in 1999 were also blamed for the increase by ALP Daryl
Melham in 2002. A spokesman for Mr Melham said This has meant
[there is] a bigger pool of people ready 24 hours a day, signing
off warrants, and [they're] signing off virtually automatically .
Cynthia Banham, Rampant
phone tapping puts US in the shade , Sydney Morning
Herald, 16 September 2002.
-
Tom Allard and Louise Dodson, Proposed phone-tapping powers come
under fire from all sides , Sydney Morning Herald, 16
February 2006, p. 4.
-
Arch Bevis MP, Senator Joe Ludwig, and Nicola Roxon MP,
Telecommunications Interception Bill , Joint Statement, 15
February 2005.
-
Senator Natasha Stott Despoja, Democrats challenge privacy
violations , media release, 15 February 2006.
-
Senator Bob Brown (Australian Greens), Phone taps cross the line
, media release, 15 February 2006.
-
Explanatory Memorandum, at p. 7.
-
Explanatory Memorandum, at pp. 7 8.
-
(1995) 184 CLR 348 at 364 5.
-
Explanatory Memorandum, at p. 9.
-
Explanatory Memorandum, at p. 10.
-
Note also that the test for a general search warrant or computer
access warrant under sections 25(5) or 25A of the ASIO Act is if
the Minister is satisfied that that there are reasonable grounds
for believing that access by ASIO to records or other things on
particular premises or computer will substantially assist the
collection of intelligence in accordance with the ASIO Act in
respect of a matter that is important in relation to security
(subsection 25(2)). Under the general
search warrant power contained in section paragraph 25(4)(d), ASIO can remove and
retain records for the purposes of making copies or inspecting the
record.
-
Explanatory Memorandum, at p. 11.
-
Explanatory Memorandum, at p. 13.
-
New subsection 116(3) clarifies that a stored communications
warrant may be issued in relation to the investigation of more than
one serious contravention.
-
The Federal Court case of
Carmody v MacKellar (1997) 148 ALR 210 held that the
Telecommunications (Interception) Act 1979 was an example
of a statutory power which can override legal professional
privilege because of the powers to listen to and record live
communications. The amendments to the TI Act 1979 preserve
the rule that communications which are subject to legal
professional privilege cannot be adduced in evidence, even if
lawfully intercepted: see TI Act, subs 74(1) and s 78.
-
Explanatory Memorandum, at p. 33.
-
Explanatory Memorandum, at p. 34.
-
Explanatory Memorandum, at p. 35.
-
Explanatory Memorandum, at p. 39.
-
Explanatory Memorandum, at p. 42.
-
Explanatory Memorandum, at p. 33.
-
Explanatory Memorandum, at p. 48.
-
EFA, Telecommunications
Interception Legislation Amendment Bill 2002, 29 July 2002,
accessed 23 February 2006.
-
ALRC terms of reference can be found online at
http://www.alrc.gov.au/inquiries/current/privacy/terms.htm.
Sue Harris Rimmer
28 February 2006
Bills Digest Service
Information and Research Services
This paper has been prepared to support the work of the
Australian Parliament using information available at the time of
production. The views expressed do not reflect an official position
of the Information and Research Service, nor do they constitute
professional legal opinion.
IRS staff are available to discuss the paper's
contents with Senators and Members and their staff but not with
members of the public.
ISSN 1328-8091
© Commonwealth of Australia 2006
Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
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Published by the Parliamentary Library, 2006.
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