Chapter 4 - B-Party interception
Introduction
4.1
One of the most contentious aspects of the Bill
is contained in Schedule 2 which deals with the so-called 'B-party' warrants. Briefly,
in the words of the Explanatory Memorandum, the provisions 'enable interception
of communications of a person known to communicate with the person of interest'.[54]
4.2
B-party warrants are issued by the Attorney-General
in the case of an application by the Director-General of ASIO, or by an
'eligible judge' or member of the AAT in the case of an application by a law
enforcement agency.
4.3
The warrant may only be issued for offences
which attract a maximum penalty of seven years' gaol. Further, they will only
be issued to an interception agency which has satisfied the issuing authority:
-
that it has exhausted all other methods of
identifying a telecommunications service used by a person of interest; or that it
is not possible to intercept the communications of the person of interest; and
-
that the person being intercepted will likely be
contacted by the person of interest on the service being intercepted.
4.4
When issuing the warrant, the issuing authority
must also have regard to the following:
- the extent to which the proposed
interception interferes with the privacy of any person;
- the gravity
of the offences being investigated;
- the extent to which the information
obtained under the warrant will assist the investigation;
- the extent to which alternative
methods of investigation have been used or are available to the agency; and
- the extent to which these alternative
methods would be useful to or would prejudice the investigation.
4.5
Once issued, the warrants are available for 45
days for law enforcement agencies and 30 days for ASIO. This is half the time provided
for the execution of existing telecommunications interception warrants.
Rationale for B-party interception warrants
4.6
The necessity for this type of interception
warrant was explained by the Attorney-General in his Second Reading speech. The
Attorney General said:
This amendment will assist interception agencies to counter
measures adopted by persons of interest to evade telecommunications
interception, such as adopting multiple telecommunications services. The
ability, as a last resort, to intercept the communications of an associate of a
person of interest will ensure that the utility of interception is not
undermined by evasive techniques adopted by suspects.
4.7
The provisions had their genesis in the Report of the Review of the Regulation of
Access to Communications ('The Blunn Report').[55] In Part 12 of that report, Blunn
observed that the current Telecommunications
Interception Act 1979 does not authorise the use of B-Party intercepts.[56]
4.8
In his exploration of the issue, Blunn observed
that the security and law enforcement agencies argue that there is a need for B
party interception, and noted its usefulness in appropriate circumstances. However
he cautioned the need for 'appropriate controls, and the need to acknowledge
and deal with the significant privacy implications.'[57] Accordingly, his Recommendation 12
states:
I recommend that the Interception Act be amended to make it
clear that B-Party services may be intercepted in limited and controlled
circumstances.[58]
4.9
Officers of the Attorney-General's Department
gave more detailed evidence of this issue to the Committee. Mr Geoff McDonald
Assistant Secretary of the Security Law Branch explained that:
... we are facing a practical problem which some law enforcement
agencies are very concerned about. It is due to people becoming more savvy about
these matters. ... People are savvy enough now, if they are involved in the
criminal side of things, to use the technology.[59]
4.10
From a policing point of view, the Deputy
Commissioner of the Australian Federal Police observed that the proposals would
clarify the position in relation to
B-party warrants and provide an 'important investigative tool' for the AFP.[60] He explained:
Where we have ... multiple phones changing and SIM cards changing,
it is often hard for law enforcement to identify the suspect’s telecommunications
service. Intercepting a close or known associate, somebody who we have to
satisfy in accordance with the criteria you have just heard about and in the
context of an affidavit before a magistrate as to what the nexus between the
two is and why we believe that may produce the communications service of the
suspect, is necessary.[61]
4.11
Assistant Commissioner Lawler
gave several examples of situations in which the amendments would assist police.
He proffered the following hypothetical case:
With suspected purchases of explosive chemicals that are outside
the norm, a particular chemical company has come forward and advised us that a
particular person will call in. He does not know who the person is. He might
have given a name; it could be false, but they will ring in to the chemical
company and advise delivery and other sorts of details et cetera. The B-party
warrant in that situation, given the current legislation, says that the person
must be involved in the offence. [62]
4.12
In another example, he explained that:
... when we use undercover operatives or cooperating informants it
is often necessary to have these people call particular individuals to gather
evidence as to the ongoing commission of offences or offences that may have
been perpetrated. That is one of the tactical techniques but as it currently
stands under the law one cannot get a telephone intercept because one is
required to establish that the service belongs to a person who is involved.[63]
4.13
The Committee also notes that an important
element of the current proposal is the clarification of the existing law on
B-party warrants, which appears to give partial approval for their use.
4.14
As Mr Blunn commented, this matter was explored
by the Federal Court in John Flanagan and
Ors v the Commissioner of the AFP and ors FCA (1995) in which the court
upheld the validity of B-party interception under the existing interception warrant
regime but 'did not provide any useful analysis of the rationale'.[64]
Assistant
Commissioner Lawler indicated that the case created ambiguity
and uncertainty over lawfulness of B-party interception under the Section 45
and 45A provisions:[65]
... there are examples
where some of the circumstances surrounding the current legislative provisions,
namely, 45 and 45A, actually capture the spirit of B-party warrants.[66]
4.15
Mr Geoff McDonald of the Attorney-General's Department
expanded on this:
The interesting thing
about it is that it can so easily be restricted to the facts of a particular
case and distinguished, but from a policy perspective we certainly need to have
a decent codified position on this rather than trying to rely on peculiar facts
of a particular case.[67]
4.16
The Committee notes that in his submission to
the Committee, the Hon Duncan Kerr SC MP refutes the existence of any
common-law right for third party interception, and states that the only lawful
basis for the interception of a telephone service is through the Telephone (Interception) Act 1979.[68]
4.17
The Committee further notes the statement of Mr Carnell, Inspector General of Intelligence and
Security:
the
nature of B-Party interception warrants inherently involves a potential for
greater privacy intrusion for persons who may not be involved in activities of
legitimate concern under the ASIO Act. As a result, particular attention will
be given to the additional legislative tests for this type of warrant, as well as checking that the duration of 90 days
is adhered to.[69]
The
counter view: B-party interception not necessary
4.18
Other submissions rejected outright these
justifications for the creation of the warrants, arguing that they are an
unwarranted invasion of privacy and that the necessary information can be
gained by existing means.
4.19
Mr Cameron Murphy of the NSW Council for
Civil Liberties, while acknowledging that the purpose of the principal Act is
to protect the privacy of people using communications devices, remained
concerned that this amendment represents 'a massive expansion of the
invasion into people’s privacy who use telecommunications devices' and
maintained that there is no real justification for it:
We can accept that, if someone is a
suspect in a criminal investigation, it is a matter of balancing the interests
of the public in ensuring that that suspected offence is investigated and that
the person is prosecuted and dealt with under the law. In this amendment, we
are dealing with something that goes much further than that. We are talking
about innocent B-parties, people who are not themselves suspected of any
offence ... B-party warrants ... shift[s] the focus of the investigation from
someone who is a suspect to an investigation surrounding the innocent B-party
on the off-chance that a suspect might contact them and there might be useful
information gleaned that way.... [70]
4.20
Similarly, the Law Council
of Australia observed that:
Schedule 2 of the Bill if enacted
allows certain law enforcement agencies and ASIO to intercept
telecommunications of a person who has no knowledge or involvement in a crime,
but who may be in contact with someone who does. In other words, people
suspected of nothing will be under surveillance. ... This is the first time ever
in Australia's history that law enforcement agencies will be given power to
intercept telecommunications of people who are not suspects, who are innocent
people.[71]
4.21
In their submission to the inquiry, the Gilbert
and Tobin Centre of Public Law states:
We believe, however, that the Bill
abrogates the right to privacy substantially more than is necessary to achieve
the Bill’s security purposes. It is important
that legislation does not abrogate rights more than is necessary and incidental
to achieving the purpose of the legislation.
Where legislation does disproportionately abrogate rights, it
may have adverse, unintended effects.[72]
4.22
Electronic Frontiers Australia was also concerned
about the provisions, the Executive Director saying that the organisation is
'completely opposed' to the B-party warrant provisions. Similarly, the
Australian Privacy Foundation urges the provisions be excised from the Bill
until they can be given further consideration.[73]
4.23
The Law Council of Australia argued that the
proposals breach Article 17 of the International Covenant on Civil and
Political Rights and described the proposals as an 'arbitrary' invasion of privacy.[74]
4.24
The NSW Council for Civil Liberties agreed and
further said that the provisions are also unjustified on practical grounds. Mr
Murphy told the Committee:
It appears to us that any of the evidence sought by law
enforcement agencies could be obtained through an ordinary service warrant or a
named person warrant. We have not yet seen a single example that stands up to
even basic scrutiny about why a B-party warrant might be needed in order to
obtain evidence about the suspect.[75]
Committee view
4.25
The Committee accepts that rapidly developing
technology, and the increasing tactical sophistication of the targets of
investigations, requires new approaches by law enforcement agencies if they are
to remain effective. The current uncertainty of the law relating to B-party interception
also requires clarification, both for law enforcement agencies and to ensure
the proper protection of privacy. For the Police and the Department, the
legislation represents a codification, and clarification of a situation which
arguably exists at present.
4.26
The Committee notes that in many cases, those
who expressed reservations about B-party warrants acknowledged that in very
rare circumstances there may be some justification for them. Mr
Timothy Pilgrim,
Deputy Privacy Commissioner summarised the resulting dilemma:
... we also recognise that the community
expects that law enforcement agencies will have access to appropriate tools to
allow them to efficiently undertake one of their key roles in the community – that
of investigating criminal activities. The challenge facing the community is
where to strike the right balance between these important community priorities.
Is the response, for example, proportional to the risk that has been
identified?[76]
4.27
Similarly, the Committee accepts the need for
B-party warrants. However, the invasion of privacy of innocent parties who
become the subject of surveillance merely by reason of association is very
significant. The key question is therefore the extent to which the Bill
provides a framework of controls over the proposed warrants to balance privacy protection with effective law
enforcement.
4.28
Evidence from witnesses and submissions
perceived various shortcomings and ambiguities in the B-party warrant provisions.
In particular, concerns focused on:
-
the differences in the thresholds for issuing B-party
interception warrants and others under the legislation;
-
controls on the dissemination of information
beyond the B-party, and the possible derivative use of information obtained
under the warrant;
-
the implications for the protection of
privileged communications;
-
reporting and accountability requirements; and
-
the need for a review of the legislation.
4.29
These issues are considered below.
Issuing B-party interception warrants
4.30
The Bill
proposes two separate regimes for issuing B-party warrants: one for ASIO on
application by the Director-General of Security, and another for law
enforcement agencies. Evidence to the inquiry argued that the parameters for
the issuance of these warrants is too wide.
Applications by the
Director-General of Security
4.31
Under this proposal, B-party interception warrants
could be issued to ASIO by the Attorney General (proposed Subsection 9(3)). Two
issues emerged in relation to this.
4.32
The first relates to the proposed issuing
authority. The Law Council was of the view that these warrants should be the
subject of judicial oversight rather than being issued by a member of the
executive; the council considers this is the best approach where decisions
erode fundamental human rights such as interference with a person’s liberty
such as the unlawful interference with a person’s right to privacy.[77]
4.33
In response, Mr McDonald explained that the
Attorney-General has been always had responsibility for issuing telecommunications
warrants, to ASIO and the safeguards which apply to other warrants issued by
the Attorney will also apply to B-party warrants.[78]
4.34
The Committee notes that this measure is
consistent with similar warrant regimes in the legislation; however the
Committee also emphasises that these warrants are not the same as the existing
TI warrants, which deal directly with persons of interest; they are third party
warrants, targeted at people who may have only a very tenuous link with the
person of interest.
4.35
At the same time, the Law Council's desire for
judicial consideration of warrant applications appears to promote a visibly
more independent approach to the issue of security warrants, although the
Committee notes that in issuing a TI warrant a judge is not making a judicial
decision but an administrative one.
4.36
The second matter relates to the threshold
criteria for issuing the warrant. Professor Williams
noted in his submission that under Item 1 of Schedule 2:
... there is no
requirement that there be evidence of a nexus between B-Party communications
and the activities prejudicial to national security which triggered the warrant.
All that must be shown is that: (i) the B-Party is likely to communicate with a
person who is likely to engage in activities prejudicial to security; and (ii)
intercepting the B-Party’s communications is likely to assist in obtaining
intelligence related to security.[79]
4.37
Professor
Williams observes that the purpose of B-party interceptions is to assist
investigations of matters prejudicial to security.[80] However, he considers the Bill grants far
more extensive powers than necessary to achieve this. They may be issued in the
absence of any evidence that the warrant will contribute to information about
the activities which give rise to the warrant. He continued:
It is enough to show
that intercepting B-Party communications to or from anyone may assist in obtaining any
intelligence related to security.[81]
4.38
Further,
Professor Williams notes that the application by the Director-General must only
show that the interception would be 'likely to assist' in obtaining
intelligence related to security; according to Professor Williams both the
terms 'likely to assist' and relating to security’ are wide and vague.
4.39
The
resulting powers potentially allow ASIO to engage in the kind of ‘fishing
expeditions’ of which the Blunn report warned.[82] The B-party warrants have the potential to
obtain online information on a continuous basis, allowing tracking of persons
via a telecommunications device, or simply the gleaning of general information
about a person's associates. If this use is intended then there should be
explicit reference to it in the legislation. This breadth and vagueness could
create the potential for abuse of the interception power.
4.40
Professor Williams suggested that the Bill be amended to provide for a precondition in
section 9 to issuing a warrant. This would require evidence that the B-party’s
telecommunications service is likely to be used to communicate or receive
information relevant to the particular activities prejudicial to security which
triggered the warrant.
4.41
The
Committee considers that this provision is far too vague. The proposal involves access to material generated
by innocent persons, and must be circumscribed as far as possible to protect
their privacy. The Committee notes that in
comparison, search warrant regimes require applicants to establish a connection
between the item sought and the offence being investigated – not to matters
which are 'likely to assist'. There appears no reason why the conditions
applying to warrants sought by the Director-General should not also contain
analogous conditions to avoid the kind of 'fishing expedition' of concern both
to Blunn and the Centre for Public Law.
4.42
Accordingly
the Committee recommends:
Recommendation 18
4.43
The Committee
recommends that as a precondition to issuing a warrant under subsection 9(3),
there must be evidence that the B-party’s telecommunications service is likely
to be used to communicate or receive information relevant to the particular
activities prejudicial to security which triggered the warrant.
Applications by law
enforcement agencies
4.44
Submissions to the Committee generally sought
more stringent requirements for demonstrating the necessity for the B-party warrant.
Electronic Frontiers Australia's submission states:
It should be required that any agency requesting such a warrant
establish to the satisfaction of the issuing authority evidence to support
their belief that the information likely to be obtained from the interception
is material to the investigation and that such information cannot be obtained
by any means other than by interception of a B-Party telecommunications
service.[83]
4.45
EFA also suggested that agencies should have to
provide evidence about the type of service – business, private, high or low
volume – so as to give the issuing authority relevant information to be
considered when assessing the extent of the invasion of privacy of innocent
party communications that is proposed. This includes not only the innocent B-party,
but other innocent persons with whom
the B party communicates.
4.46
Similar to EFA's first proposal, Professor Williams
observed:
Under items 8 and 9 of Schedule 2 (amending s 46), the issuing
officer must be satisfied that the warrant will assist in obtaining evidence
relating to the offence which is being investigated before a warrant may be
issued.
... These items do not, however, require that it be established
that the evidence will be obtained from communications between the B-Party and
the person suspected of being involved in the offence. It would be sufficient,
for instance, if: (i) the B-Party sometimes communicated with the suspect; and
(ii) intercepting communications between the B-Party and any third party would,
in some way, assist in investigating the suspect. This is a particularly low
burden.[84]
4.47
Professor Williams suggested
that the preconditions for issuing a warrant under section 46 should include
evidence that the 'suspect will, in some way, be causally related to
communications involving the B-party which will assist in investigating the
suspect.'
4.48
The Blunn report suggested that appropriate
control requirements might provide that:
... any agency requesting such a [B-party] warrant must establish
to the satisfaction of the issuing authority evidence to support their belief
that the information likely to be obtained from the intercept is material to
the investigation. The agency should also establish that it cannot be obtained
other than by telecommunications interception or the use of a listening device.
It is then for the issuing authority to consider that evidence along with any
other relevant matters such as the invasion of privacy involved and the gravity
of the alleged offence in deciding whether to issue a warrant.[85]
4.49
When this matter was raised with the officers of
the Attorney-General's Department, the Committee was advised that 'a lot of the
safeguards that apply to TI more generally apply to B-party'.[86]
However it emerged in discussions that the suggestion of Mr Blunn had not been
taken up in drafting the bill, and that the only additional requirement
applying to B-party warrants other than the general conditions was a
requirement that:
... the agency must demonstrate that it has exhausted all other
practical methods of identifying the telecommunications service to be used or
likely to be used by the suspect or that it is not possible to actually
intercept the service being used by the suspect. That is to ensure that it is a
measure of last resort and that it is done in those circumstances which are
operationally required.[87]
4.50
The Committee notes that notwithstanding both
the Attorney General's and the department's use of the expression 'last resort',
the term does not appear in the bill, although the phrase in Schedule 2 of the
bill refers to having ‘exhausted all other practicable methods’.[88]
Whether or not the conditions truly represent a last resort was a matter of
some contention. The Law Council suggested that:
... for the measure to be applied as a last resort, the agency
should have exhausted all other means of surveillance and tracking of the
suspect and not merely exhausted all other practicable methods pertaining to
telecommunications services used or likely to be used by the suspect.[89]
4.51
The Council for Civil Liberties was also of the
view that the process as described did not amount to a 'last resort', nor is it
clear what the exhausted 'practical means' may be. Mr Murphy
pointed out that this could well refer to economic efficiency or convenience.[90]
Consenting to telecommunications intercepts
4.52
It was confirmed by the AFP at the hearing that
the current TI arrangements do not provide for a situation where a person could
consent to an intercept being placed on their service.[91] Neither
is it contemplated under the current Bill.
4.53
This is not a matter that the Committee has had
time to consider in adequate detail to form any conclusions. However, given the
seriousness privacy implications of the B-party warrants, it is an area that
deserves further consideration.
Committee view
4.54
The Committee notes that the B-party warrant is
a particularly invasive tool for the detection of criminal activity. As previously
acknowledged such tools may be necessary in some circumstances, but the basis
for authorising them must take account of their unique nature. A B-party
warrant applied to a non-suspect is simply not the same as the current regime
of telephone intercept warrants applied to those suspected of serious criminal
offences. The Telecommunications
(Interception) Act 1979 prescribes very closely the circumstances in which
telecommunications can be intercepted, surrounding them with strict controls
regarding privacy and accountability. It appears to the Committee that this aspect
has been obscured where the issue of the B-party warrants is concerned.
4.55
The Committee considers that in addition to the
requirements imposed under section 46(1)(a), (b), and (c) of the Act, the
additional preconditions suggested by Professor Williams
and Mr Blunn be
included. The Committee is of the view that this will address the reservations expressed
by the Law Council and EFA.
Recommendation 19
4.56
The Committee recommends that the Bill be
amended to require that an applicant for a B-party warrant demonstrate:
-
evidence to support their belief that the
information likely to be obtained from the intercept is material to the
investigation; and,
-
establish that it cannot be obtained other than
by telecommunications interception or the use of a listening device.
Recommendation 20
4.57
The Committee also recommends that the proposed
section 46(3) (which contains the requirement that the issuing authority must
not issue 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) be amended to exclude the word 'practicable', to ensure that
before a person is subject to a B-party warrant no other way of approaching the
problem is available.
Rolling warrants
4.58
The Committee heard from the Law Council that
the 1979 Act included provisions for rolling over, or extending, interception
warrants. The Law Council was concerned at the possibility that the same might
apply to the B-party intercepts:
When you think about rolling over interception warrants in
relation to innocent people, the mind boggles. We believe that there should not
be any rollover unless a judicial officer can be shown that some very useful or
crucial information from an earlier warrant was gained.[92]
4.59
Rolling warrants allow a warrant to be renewed
before the original warrant has expired. Their use is circumscribed, and the
Attorney General's Department explained in evidence that provisions which apply
to the stored communications warrants under this bill do not permit the use of
rolling warrants for stored communications.[93]
However, there does not appear to be a similar prohibition on rolling B-Party warrants.
4.60
The Committee considers, given the nature of
these warrants, that the Bill should be amended
to state specifically that the B-party interception warrants cannot be renewed
under any circumstances. Instead, if further interception is required after a
warrant expires, it should be the subject of a fresh application.
Recommendation
21
4.61
The Committee recommends that the Bill
be amended to state that B-party interception warrants cannot be renewed. If
further interception is required after a warrant expires, it must be the
subject of a fresh application.
Dissemination and subsequent use:
legal and other professional privilege
Use and derivative use
4.62
A principal problem with the B-party warrant is
the potential for collecting a great deal of information which may be
incidental to, or not even associated with the investigation for which the
warrant was issued. As Senator Ludwig noted, 'it is not only the B-party but
also the C, D E and F parties who may at some point end up talking to B and,
therefore, being captured'.[94] The
result is that potentially not just one, but a great many non-suspects to be
caught in the B-party warrant process.
4.63
The subsequent use of such material obtained does
not appear to be controlled. This was confirmed to the Committee in response to
a question from Senator Ludwig
in which Mr McDonald
of the Attorney General's Department affirmed that use and derivative use would
be permitted of the material obtained under a B-party warrant relating to a
non-suspect.[95]
4.64
Mr Gifford
explained that this is consistent with the way that a service or named person
warrant currently operates:
... you may be the target of the interception and conversing with Senator
Payne, and Senator Payne
is not a target of the investigation at all. But Senator Payne
may talk about another offence that was not the subject of the original
investigation, to the extent that the original warrant was justified to and
authorised by the issuing authority. Then any criminal intelligence which is
subject to a three-year penalty threshold can be used.[96]
4.65
Mr Gifford
explained the implications of limiting the use of this material. He continued:
The reverse situation would require destruction of very valuable
criminal information. The extreme example would be that you would happen upon
some very valuable information in terms of a terrorism investigation. That is
an extreme example, but the use of that information is useful for our
operational agencies and has been justified in terms of the initial warrant being
authorised by the issuing authority.[97]
4.66
It could be argued that the terms of the warrant
itself would dictate the limits of the use of information obtained, but given
the potential breadth of the information able to be sought under items 8 and 9
of Schedule 2 (amending section 46), and in the light of the remarks made by
Professor Williams discussed above, it is likely that a great deal of what the
Hon Duncan Kerr MP calls 'collateral information' will be collected, and
therefore available for use.[98]
4.67
The Law Council of Australia, while maintaining
its concerns regarding the B-party warrants, said that proper controls are
necessary to regulate use and derivative use.[99]
Professor Williams
also supported stricter controls:
My view is that it is better to be safe
than sorry in an area like this, and it is very difficult through destruction
only to be absolutely clear that the immunities you would expect to apply in
such circumstances actually do apply. In the same way, it is common to see
immunities, whether it be in the ASIO legislation or other bits of legislation,
recognising that information can be collected inadvertently, otherwise it
should not have been collected. I would prefer to see a clear, direct statement
indicating that, if it does not fit within the information that could have been
collected for a certain purpose, immunities apply. I think it is inappropriate
for enforcement agencies, simply through their luck or overboard legislation,
to get access to information and then use it. [100]
4.68
Further, the fact that these warrants collect
material about third parties who are not suspects must demand particular
conditions about the use of any information obtained.
Professional privilege – legal and
otherwise
4.69
A particular problem in this potentially
open-ended process, concerns that of professional privilege. While the
discussion centred upon legal professional privilege, the confidential nature
of telephone contact with doctors, family members and other professionals was
raised. Ms Irene Grahame[101] indicated
that EFA already believes that there is a problem with the existing
interception warrants and that the B-party warrants represent an even greater
problem because of the issue of legal professional privilege. Ms
Grahame continued:
It is ridiculous to think that people would no longer be able to
be confident in seeking legal advice because their lawyer’s phone was being
intercepted. ... Any extension of it, in our view, would have to make very clear
that B-parties could not cover lawyers, because there is too much potential for
people who are not a suspect and the lawyer who is not the suspect having their
calls intercepted. [102]
4.70
Ms Grahame also considered the possibility of
such an exception also applying to other people who have a large number of
calls, including politicians and accountants.[103]
4.71
Professor Williams took the view that:
... unless there are particular or special circumstances,
privileged information, such as lawyer-client information, ought not be
collected through this type of regime. There are good arguments whereby, if
lawyers themselves were involved in activity that may be criminal or otherwise,
that may well negate the privilege. I could accept that there may be reasons
why it should be collected on that basis. Otherwise, the very nature of
lawyer-client privilege is that, where the government itself tends to be the
party on the other side of the litigation table, it is highly inappropriate
that the government gets access to that very information. It casts into doubt
the justice system in terms of how that information is used. It can lower
public confidence and, except in those limited circumstances, I would prefer to
see a clear exception for that type of information.[104]
4.72
In pursuing this issue with the Attorney-General's
Department, the Chair of the Committee asked about the interception of
conversations between individuals and legal representatives, medical
practitioners or clergy.[105]
4.73
In response, Mr
McDonald of the Attorney General's
Department indicated that in the case of Carmody
v MacKellar Ors[106]
the full Federal Court held that legal professional privilege was excluded by
implication under the current warrant provisions of the TI Act. By extension,
the privilege is excluded under the B-party warrant regime, even though these
warrants are specifically directed against innocent parties.
Committee view
4.74
The Committee remains most concerned at the
potential breadth of information relating to individuals suspected of no
criminal offence which could be captured under the B-party warrants. The
Committee does not consider that the provisions which operate for other
warrants under the Act are adequate for this unique situation.
4.75
The Committee notes the comments made by
Professor Williams in discussion of the use implications and those for legal
professional privilege:
I would prefer to see a clear, direct statement indicating that,
if it does not fit within the information that could have been collected for a
certain purpose, immunities apply. I think it is inappropriate for enforcement
agencies, simply through their luck or overboard legislation, to get access to
information and then use it.[107]
4.76
The Council for Civil Liberties agreed:
[I]f you are going to provide this power then you need to
provide an immunity so that anything that is not directly related to the
investigation for which the warrant has been obtained needs to be expressly
excluded from being used in evidence against anybody else.[108]
4.77
The Law Council's recommendations supported the
need for limitations:
g. The measures should contain express exemption categories.
Exempt communications should include the confidential communications with
lawyers, doctors and the clergy;
h. The proposed measures should expressly provide that Schedule
2 does not abrogate Legal Professional Privilege;[109]
4.78
The Committee is aware that these amendments are
designed to meet some of the demands which are a function of modern technology,
and acknowledges that law enforcement agencies are constantly meeting
situations which demand sophisticated technical responses. Nevertheless, it is
important to keep in mind the purpose behind the principle of legal
professional privilege: that the law and the system of justice that administers
it, is complex and that those affected by it are in need of professional
assistance. In seeking such assistance, the client must be able to reveal all
the relevant facts without inhibition, in order to get effective advice.[110]
4.79
So long as the communications are legitimately
for the purpose of gaining professional legal advice, they should be protected
in the normal way. In addition, there is little benefit in creating rules
against the admissibility of such evidence if, in fact, law enforcement
agencies have been privy to the confidential information already.
Recommendation 22
4.80
The Committee recommends that Schedule 2 be
amended to provide that certain material obtained under a B-party warrant will
be exempted from use under the legislation. This material should include bona
fide communications between solicitor and client; clergy and devotee; doctor
and patient and communications by the innocent person with any person other
than the person of interest to the law enforcement agency.
Recommendation 23
4.81
The Committee further recommends that the Bill
be amended to introduce defined limits on the use and derivative use of
material collected by B-party warrant.
Reporting and accountability
requirements
4.82
A matter of vital importance to the workability
of the proposals is the strength of the reporting and accountability regime,
particularly in view of the covert nature of the warrant system proposed.
Warrants granted under Part III and Part VI would have differing reporting and
accountability requirements.
B-party
warrants issued on application of the Director-General of Security
4.83
The Inspector-General of Intelligence and
Security has a statutory obligation under the Inspector-General of Intelligence and Security Act 1986:
- to assist Ministers in the
oversight and review of:
- the
compliance with the law by, and the propriety of particular activities of, Australian
intelligence or security agencies;
- the
effectiveness and appropriateness of the procedures of those agencies relating
to the legality or propriety of their activities; and
- certain other aspects of the activities and procedures of certain of those
agencies;
- to assist Ministers in ensuring
that the activities of those agencies are consistent with human rights; and
- to allow for review of certain
directions given to ASIO by the Attorney-General. [111]
4.84
There is no existing requirement for telephone
intercept warrants issued by the Attorney and associated documents to be
destroyed, but monitoring and inspection regimes do apply.
4.85
In his submission to this inquiry, Mr Ian
Carnell, the Inspector-General of Intelligence and Security indicated that his office conducts monthly inspections of all
requests by ASIO for telecommunication interception (including named person)
warrants under the TI Act.
In addition to this,
the office of the IGIS also inspects all requests for questioning and
detention, entry and search, listening device, computer access and computer
access warrants sought under the Australia Security Intelligence
Organisation Act 1979 (ASIO Act).[112]
4.86
In scrutinising ASIO’s requests for warrants,
the office of the IGIS checks inter alia,
that the intelligence or security case is soundly based, and all appropriate
internal and external approvals have been obtained.
4.87
The
scrutiny also extends to the timely provision of factual reports to the
Attorney-General of the outcome of executed warrants and checking that the activity concerned
occurred only during the approved period.
4.88
Mr
Carnell noted that both the B-Party interception and equipment-based
interception will be subjected to this inspection regime; he also observes
that:
... the nature of B-Party interception
warrants inherently involves a potential for greater privacy intrusion for
persons who may not be involved in activities of legitimate concern under the
ASIO Act. As a result, particular attention will be given to the additional
legislative tests for this type of warrant. As a result, particular attention will be
given to the additional legislative tests for this type of warrant, as well as
checking that the duration of 90 days is adhered to.[113]
B-party warrants issued on the application of a law enforcement
agency
4.89
For the
B-party warrants issued by Judges and members of the AAT, the reporting,
destruction and supervising arrangements are the same as those which currently
apply to telephone intercepts. Briefly, sections 79, 80 and 81 prescribe the circumstances
under which records are to be destroyed, and the records that must be kept of
notifications and certification of warrants, outcomes and use of information
obtained under the warrant.
4.90
In
evidence, Mr Gifford of the Attorney General's Department explained:
The use and destruction
provisions that are currently in the existing Telecommunications (Interception) Act will apply to B-party
interception. It was a conscious decision by the Attorney-General that they
would be maintained... The Telecommunications (Interception) Act
currently requires the destruction of material once the general and special
registers of warrants have been inspected by the Attorney-General. Those
registers are compiled three-monthly by the AFP. After they are reviewed and
signed off by the Attorney-General then a notice is provided to all agencies,
at which point they may destroy all material that is contained in the general
and special registers.[114]
4.91
The
Explanatory Memorandum to the Bill explained:
Lawfully obtained
information obtained as a result of B-Party interception will be subject to the
existing destruction provisions of the Act, namely, destruction where the
permitted purpose for use cease to exist.[115]
Criticisms of the accountability regime
4.92
Several
submissions pointed to weaknesses in this regime. Electronic Frontiers
Australia said in their submission that the current arrangements for
destruction have been ineffective since 2000:
The existing
destruction provisions apply only to 'restricted records' which has not included
copies of intercepted communications since amendments made in 2000. Hence
copies of irrelevant intercepted information, e.g. communications between the
innocent B-Party and other innocent persons, will be permitted to be retained
forever due to the inadequate destruction provisions of the existing Act.[116]
4.93
The
Privacy Commissioner also expressed disquiet at the provisions for destruction,
recommending 'enforceable, audited requirements that any intercepted material
outside the scope of the purpose stated in the warrant be immediately
destroyed.'[117]
4.94
The Law
Council[118] and EFA[119] made substantively similar
recommendations which suggested that the government should be required to
report annually on specific details of B-party warrants including:
-
the
number and justification of B-party intercept warrants (which should be
separately recorded by the Agency Co-ordinator and reported to the Attorney General);
-
the
number of warrants issued by the Attorney General, judicial officers and nominated
AAT Member pursuant to schedule 2, and including the grounds upon which they
were issued;
4.95
EFA
also recommends that the reporting requirements should include the suggestion
made in the Blunn report that destruction of non-material content in whatever
form should be strictly supervised. [120]
4.96
The
Committee endorses the proposals to improve security and accountability in
relation to B-party warrants, and reiterates its view that the proposals cannot
be treated as being analogous to the current TI warrant arrangements.
Recommendation 24
4.97
The
Committee recommends that:
-
there
should be strict supervision arrangements introduced to ensure the destruction
of non-material content in any form;
-
the
number and justification of B-party intercept warrants should be separately
recorded by the Agency Co-ordinator and reported to the Attorney General; and
-
the use
of such warrants should be separately reported to the Parliament.
Role of the Ombudsman
4.98
A
further consideration that relates specifically to law enforcement agencies is
the role of the Commonwealth Ombudsman. The overall inspection of interception
warrant records is the responsibility of the Ombudsman under Section 82 of the Telecommunications (Interception) Act 1979.
Under the Act, the Ombudsman's role is to inspect and report on the records of
telecommunications interception activity by the Australian Federal Police and
the Australian Crime Commission.[121]
4.99
The
Ombudsman explained:
Section 83 of the Act
requires the Ombudsman to inspect each of these agency’s records at least twice
in each financial year to ascertain the extent to which they have complied with
the provisions of sections 79, 80 and 81 of the Act dealing with the destruction
and maintenance of records. Under section 85, the Ombudsman may also report on
any other breaches of the Act detected in the course of an inspection. Under
section 84, the Ombudsman is required to report to the Minister within three months
after the end of each financial year about the results of the inspections conducted
under section 83 in relation to each agency during that financial year. As a
consequence of amendments to the Act which came into effect in July 2005, I am
now required to include in my annual report to the Minister particulars of any deficiencies
identified in those inspections that may impact on the integrity of the telecommunications
interception regime and particulars of any remedial action taken or proposed to
address those deficiencies.[122]
4.100 While there are no specific requirements for
the Ombudsman to investigate particular aspects of the B-party warrants subject
to certain provisions of the Act, the Ombudsman can undertake own motion
investigations under the Ombudsman Act
1976 into other matters relating to
the conduct of telecommunications interceptions by law enforcement agencies.
4.101 It
is theoretically open to any person adversely affected by the B-party warrant
provisions to notify the Ombudsman, in the case of an agency, or the IGIS in
the case of an ASIO warrant. However, the nature of the provisions and the
covert nature of the surveillance makes it most unlikely if not impossible for
such a notification to occur. As the Committee Chair noted in the public
hearing:
I am not entirely persuaded that one can complain to the
Ombudsman or the IGIS about a telephone intercept that one does not know about.
[123]
4.102
As discussed in the previous chapter, in view of
the additional warrants which the Ombudsman is required to inspect and report
on, the Committee is concerned to ensure that sufficient resources are at the
Ombudsman's disposal. The Ombudsman remarked:
The Ombudsman’s inspection and reporting
role is an important safeguard in ensuring that these powers are not misused
and in maintaining public confidence in the integrity of the new warrant
regime. It would be contrary to the intent of the legislation if this office
were forced to curtail these activities for want of resources to fulfil this
role.[124]
4.103
The Ombudsman continued:
Whether my
office is able to inspect most, if not all, agencies, in the spirit of the proposed
amendments, or whether we will be able to inspect only a few, will depend on whether additional resources are
available. Not only will staff need to be available to carry out inspections
but preparatory work on methodologies and the internal procedures of each
agency to be inspected will need to be done. If the resources are available to
meet both my mandatory inspection obligations and my function under proposed
section 152, my aim would be to have a program of inspections covering all agencies
which have accessed stored communications in the relevant year. [125]
4.104
Accordingly, the Committee
reiterates its previous recommendation relating to the adequacy of funding to
the Commonwealth Ombudsman.
Review of the legislation
4.105 A
number of submittors and witnesses suggested that there should be a review of
the legislation after a period of time, or the inclusion of a sunset clause.
4.106 The
Law Council of Australia said that 'similar to other legislation which erodes
fundamental rights of the Australian people', Schedule 2 should be subject to
independent review, for instance, two or three years after its commencement;
and 'a sunset clause should be incorporated in the Act'.[126]
4.107 In
evidence, Mr Cameron Murphy of the Council for Civil Liberties agreed that a
sunset clause coupled with a review would ensure that the conditions which
support the introduction of these provisions are continuing.[127]
4.108 Mr
Blunn's report considered further reviews
inevitable:
Indeed given the rate of changes within
the industry and within society more generally I believe that there is a strong
case for regular reviews, say at three yearly intervals. The complexity and
significance of the issues makes it problematic for unversed persons to do
justice to them within a reasonable time frame. I am not a fan of committees
but there may be advantage in there being a standing representative committee
structure which could do or at least provide support for future reviews.[128]
4.109 Dr
Clapin, from the Office of the Privacy
Commissioner said in evidence that such a review should not be limited to these
provisions, but to the entire Act and that provision should be made in these
amendments.[129]
Committee view
4.110
The Committee considers a sunset clause to be
appropriate for the B-party interception warrant provisions; it would serve as
a catalyst for a review of the whole telecommunications interception structure,
and in the light of advancing technology would offer an opportunity to assess
the adequacy or otherwise of this regime.
Recommendation 25
4.111 The
Committee recommends that the Bill
should include a provision for the provisions to expire in five years, with a
review at that time or earlier.
4.112 The
Review should encompass the broader issues surrounding the suitability and
effectiveness of AAT members in the warrant issuing regime, together with
consideration of ways in which the Act may be amended to take account of
emerging technologies such as peer-to-peer technology.
Equipment
based interception
4.113 Schedule
3 to the bill deals with the provisions concerning equipment-based interception.
4.114 Under
current law, it is possible to apply for a TI warrant for a named person, which
allows interception of phone services attached only to that particular person rather
than to a specific device. This has been a source of difficulty for law enforcement
agencies, when targets of interception use a multitude of different SIM cards
or phone numbers that may not be registered in their name.
4.115 The
Explanatory Memorandum states:
The purpose of this Schedule is to amend the named person
telecommunications interception warrant provisions to enable interception
agencies to intercept communications to and from communications equipment such
as mobile handsets and computer terminals. These amendments are designed to
assist interception agencies to counter measures undertaken by persons of
interest to evade telecommunications interception such as adopting multiple
telecommunications services.[130]
4.116 The
proposed warrants will only be issued where the agency can show that there are
no other practicable methods of identifying the device. The issuing authority
must be 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.'[131]
4.117 The
provisions are designed to gain access to an individual piece of equipment-such
as a computer or a mobile phone, via a unique identification number. In
evidence, Ms Hume from the Attorney General's Department explained:
Proposed section 6Q in schedule 3 ... talks about the
identification of a telecommunications service. In both subsections (a) and (b)
it refers to a unique telecommunications number. In item 3 the list of those
numbers shows that potentially it could be a telephone number. It could be an
IMEI[132] ... It could be a MAC address
of a computer. But that provision, 6Q, specifies that it has to be unique; it
is a unique telecommunications number.[133]
4.118 However Electronic Frontiers Australia
considered that such unique identifiers are unreliable. The submission
recommended that the Schedule be deleted from the bill:
This proposal appears to have an inappropriately and
unjustifiably high potential to result in interception of communications of
persons who are not suspects (i.e. are not named in the warrant) because, among
other things, the types of device numbers proposed to be used do not
necessarily uniquely identify a particular device.[134]
4.119 EFA
notes that while the Blunn report briefly discussed equipment-based
interception proposals, he made no recommendation that the warrants be
implemented. Rather, his recommendation proposed:
that priority be given
to developing a unique and indelible identifier of the source of
telecommunications and therefore as a basis for access.[135]
4.120 In
evidence, it became clear that there was a sound basis for EFA's concerns. Mr
Gifford of the Attorney General's Department acknowledged that there is
potential for duplication of numbers thought to be unique:
We do understand that risk, and we are aware that there are duplicate
IMEIs in a telecommunications network. On that basis, we have said, ‘When
you’re seeking interception on the basis of a handset, it must be defined by
reference to a unique telecommunications number, which, for the purposes of the
definition, will include an IMEI. ... You must satisfy the issuing authority that
the IMEI you are seeking interception of is a unique IMEI number.[136]
4.121 Deputy
Commissioner Lawler explained that:
... we have seen a practice whereby these numbers have been copied
fraudulently within service providers to commit fraud, but also to enable
another way of not being able to identify who has the particular handset in
question. I understand from the briefings I have received that there is the
capacity to remove such duplicate numbers from the system, as there is also the
capacity to remove stolen handsets from the system. As has been indicated, we
would do the checks that are required for the potential for those numbers to be
duplicated on the system, but they are only duplicated through, as I am
briefed, a fraudulent activity and the numbers being cloned or copied.[137]
4.122
In further discussion, the AFP indicated that
they would be required to undertake inquiries regarding the uniqueness of the
proposed identifier, and to provide details in any application for a warrant
the steps which had been undertaken to achieve this.[138] The Committee notes that it was not
clear from the evidence the extent to which that process would guarantee that
the device being targeted under the warrant was able to be certified as
uniquely identifiable.
4.123 The
Privacy Commissioner also had reservations about Schedule 3, observing that it 'broadens
the ways in which law enforcement agencies may seek to intercept communications
under the Interception Act.'[139] While
acknowledging that the proposals offer a practical solution in instances where
multiple SIM cards are used on the one handset:
... the provisions in Schedule 3 appear to
move beyond just permitting interception of particular mobile phone handsets,
for example in permitting telecommunications equipment to be identified on the
basis of an email address or a 'user account identifier'.[140]
4.124
The Privacy Commissioner
concluded:
The Office has not been able to fully
determine the limits to the scope of the operation of Schedule 3, and so
recommends that careful consideration be given to ensuring that the provisions
of Schedule 3 do not give rise to an unintended reduction of the privacy protections
in the Interception Act.[141]
Committee view
4.125 The
Committee considers that any arrangement designed to target a specific piece of
equipment should be able to identify it with a high degree of certainty. It is
the Committee's view that while there is a clear operational requirement for
law enforcement agencies to be able to target specified devices, doubts remain
over their capacity to identify these devices with a high degree of certainty.
As Mr Blunn
recommended, priority should be given
to developing a unique and indelible identifier of the source of
telecommunications and therefore as a basis for access. However, the Committee
also recognises that such developments may take some years to achieve and does
not consider it practicable to delay the passage of the provisions until that
time.
Recommendation 26
4.126 The
Committee recommends that the recommendation contained at paragraph 3.2.5 of the
Blunn report be adopted, and priority given to developing a unique and
indelible identifier of the source of telecommunications and therefore as a
basis for access.
Navigation: Previous Page | Contents | Next Page