Bills Digest no. 10 2007–08
Telecommunications (Interception and Access) Amendment
Bill 2007
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
Financial implications
Main provisions
Concluding comments
Endnotes
Contact officer & copyright details
Passage history
Telecommunications (Interception and
Access) Amendment Bill 2007
Date
introduced: 14
June 2007
House: House of Representatives
Portfolio: Attorney-General
Commencement:
Sections 1 to 3 commence
upon Royal Assent. Schedule 1, which contains the Bill s main
amendments, commences on a date to be fixed by proclamation, or six
months after Royal Assent. See the table in s. 2 of the Bill for a
full list of commencement dates.
Links:
The
relevant
links to the Bill, Explanatory Memorandum and second reading
speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
See
also the
Senate Inquiry into the Bill and the
Telecommunications (Interception and Access) Act
1979, and
Telecommunications Act 1997.
The Bill
proposes to transfer provisions in the Telecommunications Act
1997 which regulate access to telecommunications data for
national security and law enforcement purposes to the
Telecommunications (Interception and Access) Act 1979 (the
TIA Act). The Bill also proposes a new two-tier access regime for
access to historic and prospective telecommunications data. There
are also some consequential amendments to other Acts.
In response to increasingly sophisticated
communication techniques by terrorists and terrorist suspects, such
as storing emails in draft accounts but not sending them, swapping
SIM cards and using others telephones, in 2004 the government
introduced interim legislation which allowed security and law
enforcement agencies access to stored communications without the
need for a telecommunications interception warrant. Stored
communications 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. Under the
interim legislation, access to stored communications could be
obtained through the use of a search warrant. [1]
In March 2005 the government appointed Anthony
Blunn AO (a former Secretary of the Attorney-General s Department)
to undertake a review of the regulation of access to communications
under the Telecommunications (Interception) Act 1979.
[2] The review
included public submissions and consultations with security and law
enforcement agencies, the telecommunications industry, privacy
organisations and individuals.
The report titled the Review of the
Regulation of Access to Communications (known as the
Blunn report) was tabled in Parliament on 14 September 2005 and
recommended that legislation dealing with access to
telecommunications data for security and law enforcement purposes
be established.
Upon presenting the Blunn Report to
Parliament, the government simultaneously tabled legislation that
responded to the first tranche of the report s recommendations. The
Telecommunications (Interception) Amendment (Stored
Communications and Other Measures) Act 2005 included
some controversial measures such as B Party Intercepts . [3] See the relevant Bills
Digest for a detailed background on that Bill. [4]
This Bill seeks to implement the second
tranche of the Blunn recommendations, transferring key security and
law enforcements provisions from the Telecommunications Act
1997 to the TIA Act. The provisions relate to access to
telecommunications data, and regulation of telecommunications
industry interception obligations. The term telecommunications data
refers to information about a communication, as distinct from its
content, and includes the sending and receiving parties, and the
date, time and duration of the communication. [5]
An
Exposure Draft of this Bill was released in February 2007.
Industry and interest groups and security agencies were invited to
participate in a consultation process, however submissions to the
government regarding the exposure draft have not been made
public.
The Senate Legal and Constitutional Affairs
Committee conducted a
Bill Inquiry, presented to the Senate on 1 August 2007. The
committee recommended that the Bill be passed, subject to four
recommendations regarding
-
the definition of enforcement agency ,
-
the determinations of the Communications Access
Coordinator,
-
oversight by the Inspector-General of
Intelligence and Security, and
-
independent review of the legislation within
five years (the recommendations are detailed further throughout the
Digest).
[6]
Position of
interest groups
A number of groups have made submissions to
the Senate inquiry into the Bill. Most submissions have supported
the main thrust of the Bill, while pointing out some technical
problems with the drafting. [7] Others, such as those from the Australian Privacy
Foundation and Electronic Frontiers Australia, argue that the
government has misled the community by asserting that there are no
major privacy implications in the proposed legislation. [8] Concerns regarding
specific provisions in the Bill are canvassed in the discussion of
the Main Provisions.
To date there have been no statements from the
ALP, Greens or Family First on this Bill. In 2005 the ALP supported
the Telecommunications (Interception) Amendment (Stored
Communications and Other Measures) Act 2005, while the
Australian Democrats and the Greens opposed the Bill.
In a Supplementary Report to the Senate
Committee s report on the Bill, the Australian Democrats stated
that they believe the Bill as introduced does not adequately
account for privacy considerations, and recommended:
-
that CrimTrac be removed from the definition of
enforcement agency
-
that a definition of telecommunications data be
included in the Bill
-
that prospective telecommunications data, in
other words location information , be only accessed by enforcement
agencies with a warrant
-
written authorisations to access mobile
telephone location information should be limited to 14 days
duration and should not be renewable unless new information
suggests that continued interception would likely result in further
material information (with renewal up to a maximum of 20
days)
-
enforcement agencies consult with a Public
Interest Monitor before applying for an interception authorisation
(based on a Queensland model), and
-
that there be a positive obligation on the part
of ASIO or an enforcement agency, where they suspect or have actual
knowledge that an employee of a carrier is volunteering personal
information, to warn that employee that they are not legally
obliged to disclose telecommunications data.
[9]
At the public hearing for the Senate Committee
inquiry into the Bill, the Attorney-General s Department indicated
that it is considering issuing a new Explanatory Memorandum, to
clarify some of the examples provided within the document about the
intended operation of the legislation. [10] The new Explanatory Memorandum should
be available on BillsNet (at http://www.aph.gov.au/bills/)
when tabled (if any).
The Explanatory Memorandum states that the
Bill will have no financial impact on government. [11] However, for telecommunications
carriers, the Bill stipulates that they must meet the costs of
developing, installing and maintaining interception and delivery
capabilities. [12]
Schedule 1, Part 1 contains the main
amendments, proposing to transfer provisions in the
Telecommunications Act regarding access to telecommunications data
to the TIA Act.
Schedule 1, Part 2 contains consequential
amendments to a number of Acts. Schedule 1, Part 3 contains
application, saving and transitional provisions.
Key provisions and contentious issues
associated with Schedule 1, Part 1 are outlined below.
While the Bill substantially deals with access
to telecommunications data , the term is not defined within this
Bill or in either the Telecommunications Act or the TIA Act. The
Explanatory Memorandum does give a reasonably detailed definition
of telecommunications data :
Telecommunications data is information about a
telecommunication, but does not include the content or substance of
the communication. Telecommunications data is available in relation
to all forms of communications, including both fixed and mobile
telephony services and for internet based applications including
internet browsing and voice over internet telephony.
For telephone-based communications, telecommunications data
includes subscriber information, the telephone numbers of the
parties involved, the time of the call and its duration. In
relation to internet based applications, telecommunications data
includes the Internet Protocol (IP) address used for the session,
the websites visited, and the start and finish time of each
session.
Telecommunications data specifically excludes
the content or substance of a communication.
[13]
This lack of definition for a key term in the
Bill is unusual, and was noted in several submissions to the Senate
Inquiry. For example, the Law Council of Australia stated:
The purpose of the Bill is to consolidate and refine the
legislative provisions which set out the circumstances in which
different types of telecommunications information can be disclosed
and accessed for law enforcement purposes.
It is assumed that one of the key aims of the exercise is to
ensure that both the privacy rights of individuals and the powers
of enforcement agencies are clearly understood. It seems
unfortunate, and possibly counterproductive, in those circumstances
not to properly define telecommunications data . [14]
However, the Attorney-General s department has
defended the lack of a definition for telecommunications data ,
stating that because of the rapidly changing nature of
telecommunications technology, the TIA Act and this Bill have been
deliberately left technologically neutral. A department
representative told the Senate committee:
Our concern [is that] defining what technology
and call associated data may be now might be redundant in 12 months
time. Essentially we rely on the premise that the contents and
substance of a communication are protected and are only accessible
under a TIA warrant, an interception warrant or a stored
communication warrant, and it is the other information that
attaches to a communication but does not disclose the contents or
the substance of that communication that is the associated data.
[15]
Parliament may wish to consider whether there
needs to be some definition of telecommunications data within the
Bill. It should be possible to draft a definition which remains
technologically neutral but that highlights, as stated by the
Attorney-General s representative, that the information being
sought is information about the communication rather than
the communication itself. This is reinforced by proposed s. 172
(stipulating that there is to be no disclosure of the contents or
substance of a communication), so it would seem to make sense to
also include such a stipulation in the definitions section of the
Bill.
However, the Law Council of Australia has gone
one step further and requested that a definition be drafted which
sets out in positive terms exactly what type of personal
information is encompassed within the meaning of telecommunications
data . [16]
The Bill inserts into the TIA Act a new
definition of enforcement agency (item 6, subsection
5(1)). The definition is important as an authorised
officer of an enforcement agency will be able to authorise the
disclosure of historical telecommunications data. The existing TIA
Act refers to the Telecommunications Act definition of enforcement
agency, which draws together criminal law-enforcement agencies,
civil penalty-enforcement agencies, and public revenue agencies
such as the Australian Taxation Office. The proposed definition
updates the names of some of these agencies, but also allows the
government to add new agencies by regulation:
Subsection 5(1)
enforcement agency means
(k) an authority established by or under a law
of the Commonwealth, a State or a Territory that is prescribed by
the regulations for the purpose of this paragraph.
[17]
This addition was criticised by the Law
Council of Australia, which argued that the definition of
enforcement agency is intended to operate as a safeguard, providing
a clear limit on the agencies which have access to an extraordinary
and invasive power:
The Law Council believes that the practice of
reserving to the Executive the power to expand definitions of this
nature, which are crucial to scope and operation of the
TIA
Act, is of great concern. No reason has been provided for why
the efficient operation of the
TIA Act requires the sort
of flexibility afforded the Executive under paragraph (k).
[18]
The proposed definition of enforcement agency
also adds the CrimTrac Agency (5(1)(m)) and any
body whose functions include administering a law imposing a
pecuniary penalty (5(1)(n)).
There has been some criticism of these new
additions to the definition of enforcement agency. While the
CrimTrac Agency was previously captured in the definition in its
former name as the National Exchange of Police Information, it has
now been added to the definition as the CrimTrac Agency.
The Attorney-General s Department acknowledged
that it is not sure whether CrimTrac should be covered by the TIA
regime, stating that they have merely transferred all the agencies
covered by the Telecommunications Act over to the TIA Act, and will
investigate whether those agencies are actually appropriate for the
regime at a later date . [19]
Electronic Frontiers Australia was concerned
that the addition of CrimTrac could mean that it would be empowered
to obtain stored communications warrants. However, the department
argued that as CrimTrac s functions do not include investigations,
they would not be able to apply for a stored communications
warrant. [20]
The Senate Committee has recommended that
CrimTrac be removed from the definition of enforcement agency,
stating that
The inclusion of agencies in this definition
provides agencies with intrusive powers so the default position
should be that agencies are excluded, unless a positive
justification for their inclusion is forthcoming.
[21]
Item 11 proposes a new section
6R, creating the new role of Communications Access
Coordinator (CAC). It is proposed that the CAC would be the
Secretary of the Attorney-General s Department, or a person
specified by the Minister, via legislative instrument.
The CAC would replace the role of Agency
Coordinator in the Telecommunications Act, with an expanded role as
the first point of contact for both the telecommunications industry
and agencies in relation to telecommunications information.
[22] For example,
the CAC is the communication point for carriers and agencies when
disagreeing about the location of a delivery point. [23]
Subsection 6R(3) states that
unless the context otherwise requires, an act done by or in
relation to the CAC is taken to be an act done by or in relation to
the CAC on behalf of all the interception agencies.
Item 12 proposes a
new Chapter 4 for the TIA Act: Access to
telecommunications data and creates a new two-tier access
regime, relating to historical data and prospective, or near-time
data.
Currently, use and disclosure of
telecommunications data is generally prohibited under sections
276-278 of the Telecommunications Act. However, sections 282 and
283 of the Act allow access to telecommunications data for specific
law enforcement and national security purposes.
New Chapter 4 would transfer
sections 282 and 283 of the Telecommunications Act to the TIA Act.
The basis for lawful access to telecommunications data will depend
upon whether the authorising body is ASIO (referred to in the Bill
as The Organisation ), a criminal law-enforcement agency or an
enforcement agency. [24]
Proposed Division 2 of Chapter
4 sets out some general provisions, and clearly states
that the disclosure of telecommunications content, including a
document to the extent that the document contains the contents or
substance of a communication, is prohibited.
Proposed Division 3 to the
TIA Act outlines the circumstances in which ASIO can access
telecommunications data.
Proposed Division 4 sets out
the circumstances in which enforcement agencies can access
telecommunications data.
Proposed Division 6
introduces a new offence relating to secondary disclosure.
See below for a more detailed discussion of
the above provisions.
Proposed Sections 176 and 180
do not transfer existing provisions of the Telecommunications Act,
but create a new scheme for access to prospective information or
documents ie access to telecommunications data in near real
time.
Under 176(2), ASIO s
Director-General, Deputy Director-General, or an SES Band 2 officer
(known as eligible persons), would be able to authorise the
disclosure of specified information or documents that
come into existence during the period for which the
authorisation is in force (emphasis added). The eligible person may
also authorise the disclosure of information or documents that
existed prior to the time the authorisation came into force (ie
historical data). The level of authorisation required for access to
prospective data is higher than that required for historical data.
Under 175(2) and (4), the
Director-General of ASIO could allow any officer or employee of the
organisation to authorise access to historical data, whereas in the
case of prospective data, authorisation is limited to SES Band 2 or
above.
In making the authorisation, the ASIO officer
must be satisfied that the disclosure would be in connection with
the performance by ASIO of its functions
(176(4)).
The authorisation commences at the time the
person from whom the disclosure is sought receives notification of
the authorisation, and must end within 90 days, unless revoked
earlier (176(5)).
Similarly, proposed section
180 allows an authorised officer of a criminal
law-enforcement agency to authorise the disclosure of information
or documents that come into existence during the period for which
the authorisation is in force. In making the authorisation, the
officer must be satisfied that the disclosure is reasonably
necessary for the investigation of a Commonwealth or
State/Territory offence that is punishable by imprisonment for at
least three years. The officer must also have regard to how much
the privacy of any person or persons would be likely to be
interfered with by the disclosure (180(5)).
The authorisation period is half that allowed
for ASIO investigations 45 days (180(6)).
These two provisions have attracted
significant criticism, particularly because they would seem to
allow the use of mobile phone telecommunication data to allow
agencies to pin-point with reasonable accuracy the location of the
user in other words, to use mobile phones as a virtual tracking
device in near-real time.
The Law Council of Australia submitted to the
Senate inquiry:
Given the invasion of privacy it represents, the Law Council
believes that criminal law-enforcement agencies should require a
warrant in order to access prospective telecommunications data and
thus use a person s mobile phone as a tracking device.
The Law Council recognises that under Section 39 of the
Surveillance Devices Act 2004, law enforcement officers
are already able to use a tracking device without a warrant in the
investigation of a federal offence which carries a maximum penalty
of at least 3 years. This is provided that written permission is
received from an appropriate authorising officer and installation
and retrieval of the device does not require entry onto premises
without permission or interference with the interior of a vehicle
without permission.
Nonetheless, the Law Council believes that the
ease with which telecommunications data may be used to track a
person, as compared to the difficult of secretly affixing a
physical tracking device to a person or thing, renders proposed s.
180 far more amenable to misuse or overuse by law enforcement
agencies than existing provisions in the
Surveillance Devices
Act 2004. [25]
The Inspector-General of Intelligence and
Security (IGIS) has requested that ASIO s access to prospective
data come under his purview, stating that this would involve
periodic visits to ASIO by the IGIS staff, to review all the
authorisations granted in the preceding period to ensure there was
sufficient justification for their issue and to ensure that
requirements set under s. 183 (relating to the form that
authorisations must take) are met. [26] The Senate Committee recommended IGIS
access in its Bill review. [27]
The Explanatory Memorandum acknowledges that
access to prospective telecommunications data has increased privacy
implications . [28]
Through the Explanatory Memorandum, the government has argued that
these implications are addressed by three more restrictive
authorisations that are attached to s. 180:
-
disclosure is restricted to an authorised
officer of a criminal law-enforcement agency (as opposed to the
broader definition of enforcement agency), for the investigation of
offences which attract a maximum term of imprisonment of at least
three years
-
the timeframe for which an authorisation may be
in force is limited to 45 days; and
-
the authorising officer must have regard to the
impact of the authorisation on the privacy of the individual
concerned.
[29]
The Law Council of Australia questioned the
value of the requirement for an authorising officer to have regard
to the privacy of the person affected:
As currently drafted this subsection has little value. It is not
clear what it means to have regard to a person s privacy.
How is this intended to impact upon or guide the decision maker in
this context?
The Law Council believes that the section should be amended so
that it is expressed in terms of a test to be applied by the
authorised officer. The Law Council suggests, for example, that the
subsection could provide as follows:
Before making the authorisation, the appropriate authorising
officer must be satisfied on reasonable grounds that the likely
benefit to the criminal investigation which will result from the
disclosure substantially outweighs the extent to which the
disclosure is likely to interfere with the privacy of any person or
persons. [30]
In a similar vein, Privacy NSW suggested
proscribing a requirement to have each enforcement agency (to whom
authorising officers belong) develop guidelines on how the privacy
implications of an authorisation should be considered and
documented. [31]
The Senate Committee took a slightly different
approach by recommending that when formulating requirements for
documentation of the authorisation and notification process,
(proposed s. 183(2)), the Communications Access
Coordinator should include requirements for the consideration and
documentation of privacy issues by authorised officers. [32]
At the public hearing for the Senate s inquiry
into the Bill, the Attorney-General s department noted that
existing section 282 of the Telecommunications Act already allows
access to prospective data. As the EM states, advances in
technology now mean that prospective data can actually be accessed,
including location information via mobile phones and convergent
devices. The department s representative told the hearing:
As to the idea that it can be used for tracking,
a mobile phone sends certain signals up to a cell site indicating
that we are in a certain location. At the moment the technology is
not such that it will pinpoint where either of us are to any level
that you could actually track a person to any point.
[33]
This viewpoint contradicts that of Electronic
Frontiers Australia, who submitted:
According to commercial mobile phone
location-based service suppliers which use location information
provided by Australian telecommunications carriers, a mobile phone
can currently be located to within 200 metres in metropolitan areas
(and within 100 metres in some urban areas). However, new
technologies such as Assisted GPS, which is reportedly expected to
be introduced in Australia by some carriers in 2007 or 2008, will
greatly improve the accuracy of mobile phone location information.
[34]
The Attorney-General s department argued
against the need for warrants for access to prospective data
because the government believes the Bill sets up appropriate
safeguards against misuse of the data:
we are establishing certain hurdles that
[agencies] will have to get through to access this information we
will prescribe all of the hurdles that an agency must go through
before they can obtain this information and the kind of form that
it has to be in. We will dictate fairly stringent guidelines for
how this information is accessed. We obviously do not have any
guidelines at the moment, because that it something that will be
developed.
[35]
The Internet Industry Association (IIA) has
questioned how internet service providers are to provide
telecommunications data such as an email s To and From fields, date
and probably path/IP address/es, in near real time without breaking
the telecommunications interception law which was introduced in
last year s Bill dealing with stored communications (stating that
an email is considered to be passing over a telecommunications
system until it becomes accessible to the intended recipient -
effectively until it is in the intended recipient's mail box able
to be downloaded. Interception during passage is prohibited).
[36]
Division 6 of new Chapter 4
relates to secondary disclosure/use offences. Under
proposed s. 182, a person commits an offence if
information or a document is disclosed to the person as permitted
by Division 4, and the person then discloses or uses that document
(a penalty of imprisonment for up to two years applies).
Subsections 182(2) and (3)
would provide some exemptions, allowing disclosure or use if
reasonably necessary for the performance of ASIO of its functions,
for the enforcement of criminal law, or for the enforcement of a
law imposing a pecuniary penalty, or for the protection of the
public revenue. The defendant carries the evidential burden in
relation to these subsections.
The Police Federation of Australia has raised
its concern regarding proposed s. 182 (2)(c),
relating to exemptions if the disclosure or use is reasonably
necessary for the enforcement of a law imposing a pecuniary
penalty. The Federation is concerned that this may include police
disciplinary hearings, as in most states such disciplinary
proceedings may attract a pecuniary penalty. The Federation argued
that this provision means that police officers would be subject to
a lower standard of privacy than the general community. The
Federation told the Senate inquiry:
We are concerned that the Bill will give the
ability to disclose information, as limited as it might be, which
will therefore allow people to undertake fishing expeditions for
further information that they might think they can gather.
[37]
While the Attorney-General wrote to the Police
Federation of Australia seeking to assure them that the above
scenario was not the intent of the legislation, the Federation has
nonetheless requested a re-drafting or clearer definition of the
pecuniary penalty provision of proposed s. 182.
[38]
Part 4-2 of new Chapter 4
sets out the procedural requirements relating to authorisations.
Under proposed s. 183, authorisations and
notification of authorisations must be in written or electronic
(for example, email) form. The Communications Access Coordinator
may, with consultation with ACMA and the Privacy Commissioner, set
out requirements for the written form of authorisations and
notifications (s. 183 (0 and (3)).
An internet service provider, Internode
Systems Pty Ltd, expressed concern that the wording of Part 4-2 is
not clear enough regarding the form of a notification. Internode
noted that there is no legislated requirement for a notification to
include a copy of the authorisation, or proof that the person
giving the notification is in fact authorised to do so, and that
the authorisation has been made following due process and that the
authorisation does indeed exist. [39]
While Internode s concerns would presumably be
able to be allayed by the requirements that the CAC will be able to
set for authorisations and notifications (s.183), the company does
make a valid point regarding carriers obligations to ensure that
the interceptions they are being asked to undertake are completely
legal.
Proposed section 186 requires
that each enforcement agency will be required to provide the
Minister with an annual report detailing the number of
authorisations made under sections 178-180, and
any other matter requested by the Minister about those
authorisations. The reports must be tabled in Parliament, and must
not be made in a manner that is likely to enable the identification
of a person.
The Law Council of Australia submitted that
the reporting requirements should be strengthened so that they are
at least as stringent than those set out in the Surveillance
Devices Act 2004. The Law Council of Australia asked that the
section be amended by adding the following requirements:
(a) the number of applications for authorisation that were
refused during that year, and the reasons for refusal; and
(b) the number of arrests made by officers of the agency during
that year on the basis (wholly or partly) of telecommunication data
obtained under a prospective authorisation issued under s180;
and
(c) the number of prosecutions for relevant offences that were
commenced during that year in which information obtained as a
result of telecommunication data disclosed under a prospective
authorisation issued under s180 was given in evidence and the
number of those prosecutions in which a person was found guilty.
[40]
Proposed Chapter 5 to the TIA
Act sets out the obligations of telecommunications carriers and
service providers to ensure that telecommunications data are
capable of being intercepted. This includes:
-
the establishment of delivery points from which
carriers will transmit intercepted information to ASIO and
enforcement agencies (s. 188), and details on how
disagreements over delivery points are to be determined
-
the Minister s ability to make determinations
relating to interception capabilities and the obligations of a
person covered by a determination (s.
189-192)
-
the CAC s ability to grant exemptions from
interception capability determinations (s.
192)
-
the requirement for carriers to produce
Interception Capability plans which set out how they are going to
meet their legal obligation to provide interception capabilities
(Part 5-4); and
-
a stipulation that the costs of developing,
installing and maintaining interception and delivery capabilities
are to be bourne by the carriers (Divisions 2 and 3 of
Chapter 5).
The submission to the Senate Inquiry from the
Australian Mobile Telecommunications Association (AMTA) generally
supported the Bill but raised some concerns regarding determination
of delivery points, the redefinition of Interception Capability
(regarding what equipment is actually covered by the definition),
and development and ACMA s consideration of IC plans. Carriers
Vodafone and Telstra also raised some concerns regarding costs of
implementing IC plans and the lack of consultation before
Ministerial or CAC determinations are made. [41]
Schedule 2 contains further consequential
amendments to other Acts, including:
-
an amendment to section 5D(3A) of the TIA Act
to ensure that all child pornography offences are included in the
list of serious offences for which an interception warrant may be
sought (Schedule 2, item 7), and
-
a new proposed Part 2-4 to the
TIA Act, which would allow the
Attorney-General to authorise interception for developing and
testing interception capabilities.
By
introducing a two-tier access regime for historical and prospective
telecommunications data, the Bill has tightened up the existing
regime by limiting access to prospective communications to ASIO and
law enforcement agencies, and requiring a higher level of
authorisation than that required for historical data.
As the
Bill primarily deals with access to telecommunications data , it is
unusual that the term is not clearly defined. There is an argument
that it would be prudent to keep any such definition
technologically neutral, given the rapidly evolving pace of the
technology. However, given that the Bill proposes intrusive powers,
a clear definition of telecommunications data may help to balance
privacy concerns against security and enforcement agencies need to
access the information.
Parliament needs to consider whether the higher level of
authorisation required for access to prospective telecommunications
data adequately meets the privacy concerns that arise, particularly
given the development of new technologies and the likelihood that
mobile phone tracking is either possible already or will be in the
near future. There is some argument for requiring a warrant for
access to such information, rather than a written authorisation
from within the requesting agency.
There are
also some industry concerns regarding implementation of the scheme
particularly surrounding delivery points and Interception
Capability Plans.
It is also worth noting that the Australian
Law Reform Commission (ALRC) is currently reviewing privacy law,
including telecommunications interception and privacy law. A
discussion paper is due for release in September 2007, with the
final report due to be given to the Attorney-General six months
later, in March 2008. [42]
Given this comprehensive review of privacy
law the question may arise as to whether this legislation could be
delayed to allow consideration and perhaps incorporation of the
ALRC s findings on telecommunications privacy issues.
Endnotes
[1]. The Telecommunications (Interception) Amendment
(Stored Communications) Act 2004.
[4]. Sue Harris-Rimmer, Telecommunications (Interception)
Amendment Bill 2006 , Bills Digest no. 102, Parliamentary
Library, Canberra, 2005-06.
[5]. Hon. Philip
Ruddock MP, Attorney-General, Second Reading Speech:
Telecommunications (Interception and Access) Amendment Bill 2007 ,
House of Representatives Debates, 14 June 2007, p. 8.
[9]. Supplementary
Report with Additional Comments of Dissent by the Australian
Democrats , Senate Standing Committee on Legal and Constitutional
Affairs, Report on Telecommunications (Interception and Access)
Amendment Bill 2007, 1 August 2007, p. 37.
[10]. Ms Catherine
Smith, Attorney-General s Department, Evidence to the
Senate Legal and Constitutional Affairs Committee Inquiry into the
Telecommunications (Interception and Access) Bill 2007, Transcript
of Evidence, 16 July 2007, p. 26.
[11].
Explanatory Memorandum, p. 1.
[12]. See the Bill:
Schedule 1, Chapter 5, Part 5-6 Allocation of Costs.
[13].
Explanatory Memorandum, p. 6.
[15]. Ms Catherine
Smith, Attorney-General s Department, Evidence to the
Senate Legal and Constitutional Affairs Committee Inquiry into the
Telecommunications (Interception and Access) Bill 2007, Transcript
of Evidence, 16 July 2007, p. 22.
[16]. Law Council
of Australia, op. cit, p. 15.
[17]. Item 6, page
4 of the Bill.
[18]. Law Council
of Australia, op. cit, p. 13.
[19]. Ms Wendy Kelly, Attorney-General s Department,
Evidence to the Senate Legal and Constitutional Affairs
Committee Inquiry into the Telecommunications (Interception and
Access) Bill 2007, Transcript of Evidence, 16 July 2007, p. 25.
[21]. Senate Standing Committee on Legal and Constitutional
Affairs, op. cit, p. 35.
[22].
Explanatory Memorandum, p. 6.
[23]. See the Bill:
Schedule 1, Chapter 5, Part 5-2, s. 188 (2).
[24].
Explanatory Memorandum, p. 7.
[25]. Law Council
of Australia, op. cit, p. 7.
[27]. Senate
Standing Committee on Legal and Constitutional Affairs, op. cit, p.
35.
[28].
Explanatory Memorandum, p. 12.
[30]. Law Council
of Australia, op. cit, p. 8.
[32]. Senate
Standing Committee on Legal and Constitutional Affairs, op. cit, p.
35.
[33]. Ms Catherine
Smith, Attorney-General s Department, op. cit, pp. 23 24.
[35]. Ms Catherine
Smith, Attorney-General s Department, op. cit, p. 24.
[37]. Mr Mark
Burgess, Police Federation of Australia, Evidence to the
Senate Legal and Constitutional Affairs Committee Inquiry into the
Telecommunications (Interception and Access) Bill 2007, Transcript
of Evidence, 16 July 2007, p. 3.
[40]. Law Council
of Australia, op. cit, p. 9.
Bronwen Jaggers
3 August 2007
Law and Bills Digest Section
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