Supplementary Report with Additional Comments of Dissent by the Australian Democrats
1.1
The Democrats agree with a majority of the
recommendations presented in the Chair’s report.
1.2
We commend the Chair and the Secretariat for their
efforts.
1.3
The Democrats recognise the importance of the review of
the regulation of access to communications carried out by Mr
Anthony Blunn AO
and agree that it is necessary that amendments be made to the current outdated Telecommunications (Interception) Act 1979
in order to maintain its technological relevance.
1.4
We note with dismay the lack of time that the committee
has been allocated to report on this bill. The ability of members of the
general public to make submissions and Senators to report to the Parliament is
constrained when there is inadequate amount of time to consider a Bill.
1.5
We believe the Bill, as
introduced, does not adequately account for privacy considerations.
1.6
The operation of the Bill
is in conjunction with other legislation which further reduces fundamental
civil liberties of Australian citizens.
1.7 We believe a
majority of the recommendations contained in the Chair’s report will improve
the Bill and lessen the potential for abuses of
privacy but provide the following additions:
Stored Communications Warrants – Schedule
1
1.8
The Democrats recognise the necessity for a stored
communications warrant regime to be introduced in order to maintain the ability
of enforcement agencies to efficiently combat crime.
1.9
We believe that the balance between the privacy rights
of Australians and the need for enforcement agencies to carry out their duties
efficiently is disproportionate in the current format of the bill to the
detriment of privacy rights.
1.10
A matter of concern for the Democrats is the differing
thresholds for interception warrants and stored communications warrants.
1.11
During the inquiry, I asked the Attorney-General’s
Department about the rationale for the differing thresholds for stored
communications and interception warrants. The notion that e-mails and SMS’ are
more considered than a live communication was stated by the Department;
“It
is something that is in writing – something that definitely involves more
consideration of the expression – although there is the speed issue.”[151]
This rationale is unconvincing.
In response to this claim, Professor Williams
argued;
“It
strikes me as nonsensical that a differentiation would be drawn between
speaking to somebody on a mobile phone and sending them an SMS message. Many of
the students who I teach today see them as equivalent forms of communications.
It makes no sense as a matter of law or public policy why, indeed, it is easier
to gain one type of information than the other ... I think the proper focus for
assessing this legislation is: what is the appropriate limitation upon the
privacy of Australian people? For them there is no rational distinction, so I
cannot see how you could justify one from the government's end.”[152]
1.12
I note statements made earlier in the year by NSW
Council of Civil Liberties Chair Mr Cameron Murphy regarding comparisons of
Telecommunication Intercepts between Australia and the United States where he
highlighted the councils concerns:
“Recently
released figures show that telephone wiretapping by government agencies in Australia (including the police) continues to grow. Not only
does Australia issue 75% more telecommunications interception
warrants than the US, but per capita Australia issues 26 times more warrants than the US. In Australia non-judges issue 76% of all warrants, whereas in the US only judges can issue warrants.
In
the twelve months 2003/2004 there were 3028 warrants issued in Australia. In the twelve months of 2004, US courts issued 1710
warrants. Adjusting for population, Australia intercepts telephone communications 26 times more per
capita than the United States.
Worryingly,
the numbers are way up on figures only two years ago. In 2001 there were more
than 2150 warrants issued in Australia, compared with only 1490 warrants issued in the United States of America. Australia intercepted telephone communications 20 times more
per capita than the United States.”[153]
1.13
The Democrats see these overwhelming numbers as an
indication that the current methods of oversight are not functioning properly.
1.14
The Democrats support the recommendation made by the
Chair to review the suitability and effectiveness of the AAT in warrant issuing
regime.
1.15
In order to address these deficiencies we make the
following recommendations;
Recommendation 1
1.16
That the threshold for stored communications warrants,
that being for investigations into offences with penalties of at least a
maximum of three years, be replaced by the same threshold as that for
telecommunication interception warrants.
Recommendation 2
1.17
That more information be required of agencies
requesting a stored communication warrant. This information should include the
number of previous applications the agency has made with respect to the person
or the service the person has used, the number of warrants previously issued and
the date on which the most recent was issued and particulars of the use made by
the agency of information obtained by access under such warrants.
Recommendation 3
1.18
That the individuals on whom a stored communications warrant
has been exercised be notified of the existence of the warrant where that
disclosure will not materially affect the investigation. Where it is considered
that such disclosure will materially affect the investigation, there exists an
obligation on the Chief Officer of the agency to inform the person on whom the
warrant was exercised as soon as that disclosure is considered to no longer
materially affect the investigation.
B-Party Warrants – Schedule 2
1.19
The operation of B-party warrants represents a serious
breach of privacy as they are targeted at non-suspected persons. We believe
that the operation of B-Party warrants as they are contained in the Bill
can not be justified.
1.20
As the Victorian Privacy Commissioner stated;
“Telecommunications
is one of the common means by which many individuals discuss their most private
and intimate thoughts, as well as the ordinary daily details of their lives.
They may also engage in political discourse, discuss business ventures, seek
legal and other professional advice. People have a legitimate and reasonable
expectation that the State will not listen surreptitiously to these
conversations. Accordingly, any such interception has been subject to strict
regulation under law, with oversight.”[154]
1.21
The Democrats welcome the recommendations made in the
Chair’s report, however, we believe that the recommendations are not sufficient
to ensure the privacy rights of Australian citizens.
1.22
During the inquiry, I asked a number of the witnesses
for their opinion on how this Bill may operate
in conjunction with other legislation to affect the civil liberties of
Australian Citizens. Dr Bibby
of the New South Wales Council for Civil Liberties stated;
“As
soon as you give powers to organisations to take away liberty in the way that
the two antiterrorism laws and the powers that were given to ASIO a few years
ago have done, you open up the possibility of it being done for totally
spurious reasons. The more you allow privacy to be invaded, and the more you
allow the stuff to be kept secret, the greater the chances are that these
powers will be misused – and misused in ways which it is impossible for people
to correct.”[155]
1.23
The President of the New South Wales Council for Civil
Liberties Mr Cameron Murphy remarked that;
“We
are seeing both the public and the parliament becoming desensitised to the
nature of the extraordinary powers that are being sought. Instead of just being
used to get us over a period in which there might be a drastic and imminent
threat, it is becoming the norm, and those powers are being extended to many
other agencies.”[156]
1.24
The Democrats note this statement with alarm.
1.25
We believe that the Bill
does not adequately consider the importance of professional privilege and note
that where this privilege is abrogated it erodes the ability of lawyers,
medical officers, parliamentarians and religious leaders to offer their
services in confidence.
1.26
Despite arguments submitted by the Attorney-General’s
Department that there has been precedent established in Carmody v MacKellar& Orrs [1996] 791 FCA 1, which allows for
the abrogation of legal professional privilege, we are not convinced that this
should be applied by analogy to justify the interception of telecommunications
to non-suspected third persons.
1.27
We believe that professional privilege should be
protected from interception not only for the reason that non-suspected persons
should not have their privacy infringed upon but also for reasons of public
policy. It is crucial that Australian citizens can be assured that whatever
information is given in confidence to a lawyer, religious leader or medical
officer remains in confidence.
1.28
Evidence has been produced to persuade the Parliament
that B-Party warrants are necessary in the prevention of crime and terrorism as
criminals are evolving with technology and continuing to use it to their
advantage to avoid detection and prosecution.
1.29
ASIO’s ability to use B-party warrants is of concern to
the Democrats as the criteria to obtain a warrant for the organisation operates
at a very low threshold. Professor George
Williams in his submission to the inquiry
stated;
“B-party
warrants may be issued even if there is no evidence that the warrant will
assist in obtaining information relevant to the activities which triggered the
warrant. It is enough to show that intercepting B-party communications to or
from anyone may assist in obtaining any intelligence related to security.
Once
it is shown that the person involved in activities prejudicial to security
communicates with the B-party, the Director General must only discharge the
very low burden that the interception will be likely to assist in obtaining
intelligence related to security. ‘Likely to assist’ is a very broad standard.
Further, the concept of ‘relating to security’ is both wide and vague,
particularly since ‘security’ has the same wide meaning as that given in
section 4 of the Australian Security
Intelligence Organisation Act 1979 (Cth).”[157]
1.30
The Democrats are of the belief that it is in only very
remote circumstances where the use of a B-Party warrant may assist intelligence
and enforcement agencies in a manner which would be otherwise unavailable to
them.
1.31
For this reason, it is crucial that a high threshold be
required in the issuing of a B-Party warrant. Any warrant issued should meet
the following list of recommendations at a minimum.
Recommendation 4
1.32
The same requirements that apply to the AFP for a
B-party warrant should also apply to ASIO.
Recommendation 5
1.33
The use of such warrants should only be authorised by a
Judge on the Federal Court of Australia,
the Family Court of Australia
or on the Federal Magistrates Court.
Recommendation 6
1.34
Warrants should be limited to fourteen days duration
and should not be renewable unless during that fourteen days information
material to the investigation had been obtained and suggested that continued
interception would likely result in further material information. The duration
of a renewed warrant should not exceed 30 days.
Recommendation 7
1.35
An issuing authority must under no circumstances grant
a B-Party warrant where the warrant is likely to breach professional privilege.
Any agency applying for a B-Party warrant must state in an affidavit that they
are of the belief that the B-party is not privy to professional privilege.
Recommendation 8
1.36
The B-Party must be informed about the operation of the
warrant after it has been exercised. The Chief Officer of the authorised agency
may use their discretion to delay the disclosure where such disclosure may
materially affect the success of the investigation. Where disclosure will not
materially affect the success of the case the Chief Officer is required to
inform the B-Party of the existence of the warrant as soon as possible.
Recommendation 9
1.37
No copies of recordings should be made before the
review of the original recording. Where it is apparent that the interception
does not involve the suspected person the recording should be immediately
destroyed.
Recommendation 10
1.38
The destruction provisions of the act should be amended
to mirror those contained in the Surveillance
Devices Act 2005.
Equipment Based Warrants – Schedule 3
1.39
The section of the Bill
that relates to equipment based warrants has led to much confusion as to the
scope of its operation.
1.40
During the inquiry, I asked the Office of the Privacy
Commissioner about their submission which stated;
“The office has not yet been able to fully determine
the limits to the scope of the operation of schedule 3.”[158]
In
response Mr Timothy
Pilgrim, Deputy Privacy Commissioner stated
“...it is an issue that we have been grappling with and,
given our time to be able to devote to issues such as this, have not been able
to fully explore...What we are not able to grapple with – or have not had time to
grapple with – is how that might be broadly applied in various scenarios.”[159]
1.41
Electronic Frontiers Australia in its submission stated
that;
“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.[160]
1.42
The Democrats note that the Blunn report did not
recommend the introduction of equipment based warrants. Rather the report
recommended that “priority be given to developing a unique and indelible
identifier of the source of telecommunications and therefore as a basis for
access.”[161] Discussion in the report
highlights the difficulties of accurately identifying a person through the use
of International Mobile Service Identifiers (IMSI) or similar identification
numbers.
1.43
The Democrats
believe that the operation of schedule 3 of the Bill
in its current form is untenable and needs to be referred for further
consideration.
Recommendation 11
1.44
Schedule 3 of the bill should be removed from the Bill
and referred back to the committee until such time as it is possible to
determine the full scope of its operation.
Senator
Stott Despoja
Australian Democrats
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