Additional Comment by Labor Members

Labor members fully endorse each of the 22 recommendations made by the Committee. If implemented, those recommendations – which are the product of a lengthy, robust and very productive engagement between Labor and Liberal members – would result in significant improvements to the mandatory data retention regime.
However, in one respect, Labor members believe that the Committee should have gone further in seeking to balance the legitimate interests of law enforcement, on the one hand, with the protection of privacy, on the other.
Putting to one side the power to access telecommunications data to locate a missing person, Labor members are concerned that the power to access telecommunications data without a warrant may be used – and is, in fact, currently being used – to access the telecommunications data of individuals who are not themselves suspected of any wrongdoing.
We do not suggest that, in and of itself, there is anything wrong with the powers being used in this way. There are clearly a range of circumstances in which even the telecommunications data of a victim, for example, could substantially assist authorities in an investigation.
However, in the context of a criminal investigation and in the event the other statutory tests for accessing a person’s telecommunications data are satisfied, we do not think that law enforcement agencies should be able to access the telecommunications data of an individual who is not suspected of any wrongdoing unless:
1
the person provides consent;
2
seeking the person’s consent is reasonably likely to compromise an investigation (e.g. if authorities are seeking access to the telecommunications data of a friend or family member of a suspect); or
3
the person’s consent cannot be obtained (e.g. where the individual is a victim who has been seriously injured or killed).
We think the Telecommunications (Interception and Access) Act 1979 should be amended accordingly.
Apart from the obvious privacy concerns, Labor members are concerned that allowing law enforcement agencies to access the telecommunications data of individuals who are not suspected of any wrongdoing – including victims of, or witnesses to, serious criminal wrongdoing – without consent may discourage victims or witnesses from coming forward to report crimes.
Labor members note that significant intrusions into privacy by law enforcement agencies, such as a search of a person’s home, opening a person’s mail, installing a listening device or obtaining a saliva sample, generally require agencies to obtain a person’s consent or a warrant from an independent issuing authority.
Given that context, we consider our proposal to be both modest and sensible.
Labor members acknowledge that, if our proposal is implemented, a situation could arise where:
1
an enforcement agency believes that an innocent individual’s telecommunications data would substantially assist an investigation;
2
advanced notice to the individual would not compromise the investigation, no emergency exists, and it is reasonably practicable to notify the individual; and
3
the relevant individual refuses to provide consent.
In those circumstances, Labor members believe that an authorised officer should be required to obtain a warrant from an independent issuing authority.
Hon Anthony Byrne MP
Deputy Chair
Hon Mark Dreyfus QC MPSenator Jenny McAllister
Senator the Hon Kristina KeneallyDr Anne Aly MP

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