The committee's inquiry has spanned 15 months. During that
time, the committee received much evidence highlighting the need for urgent and
comprehensive reform of the Telecommunications (Interception and Access) Act
1979 (TIA Act) including substantial comment on the matter of mandatory
data retention. During the later stages of the committee's inquiry, the
government announced that it would be introducing a mandatory
telecommunications data retention regime.
Although the issues of comprehensive reform of the TIA Act
and mandatory data retention are not mutually exclusive, to the extent
possible, they have been considered separately to ensure that adequate
consideration is given to both matters.
This majority consensus report details the need for reform
of the existing TIA Act.
Separate additional remarks on the matters of data access
and data retention are provided by the committee Chair, the government members
of the committee and the opposition members of the committee.
On 12 December 2013, the Senate referred the following matter to the
Legal and Constitutional Affairs References Committee for inquiry and report by
10 June 2014:
Comprehensive revision of the Telecommunications (Interception
and Access) Act 1979 (the TIA Act), with regard to:
recommendations of the Australian Law Reform Commission For Your Information:
Australian Privacy Law and Practice report, dated May 2008, particularly
recommendation 71.2; and
relating to the Act from the Parliamentary Joint Committee on Intelligence and
Security Inquiry into the potential reforms of Australia’s National Security
Legislation report, dated May 2013.
The Senate later extended the reporting date – to 27 August 2014, 29
October 2014, 3 December 2014, 12 February 2015 and 18 March 2015.
As a result of the introduction of the Abbott Government's Telecommunications
(Interception and Access) Amendment (Data Retention) Bill 2014 and its referral
to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) for
inquiry and report by 27 February 2015, the Senate again extended the reporting
date of the inquiry to enable the committee to consider the government’s
proposed data retention policy and the findings of the PJCIS.
Background to the terms of reference
As the terms of reference indicate, the committee was required to
comprehensively review the Telecommunications (Interception and Access) Act
1979 (TIA Act) having regard to recommendations made by two other bodies—the
Australian Law Reform Commission (ALRC) in its report, For Your Information:
Australian Privacy Law and Practice, and the PJCIS, in its report of the
Inquiry into Potential Reforms of Australia's National Security Legislation.
These earlier inquiries are briefly discussed below.
The Australian Law Reform
Commission—For Your Information: Australian Privacy Law and Practice
On 30 January 2006, the then Attorney-General, the Hon Philip Ruddock
MP, referred 'matters relating to the extent to which the Privacy Act 1988 and
related laws continue to provide an effective framework for the protection of
privacy in Australia' to the ALRC for inquiry and report.
In referring the matter, the Attorney-General requested that, among other
things, the ALRC have regard to:
the rapid advances in information, communication, storage,
surveillance and other relevant technologies;
possible changing community perceptions of privacy and the extent
to which it should be protected by legislation; and
emerging areas that may require privacy protection.
The ALRC presented its report, titled 'For Your Information:
Australian Privacy Law and Practice', on 30 May 2008 making 295
recommendations. The primary focus of the ALRC's report was information
however, the issue of privacy and telecommunications
was considered in Part J of its report. In Part J the ALRC acknowledged 'the
need for telecommunications regulation to respond to a convergent
but noted that as issues relating to convergence were beyond the scope of its
terms of reference they should be considered separately. To that end, in
recommendation 71.2 the ALRC called for a review of telecommunications
legislation. Recommendation 71.2 reads as follows:
The Australian Government should initiate a review to
consider whether the Telecommunications Act 1997 (Cth) and the
Telecommunications (Interception and Access) Act 1979 (Cth) continue to be
effective in light of technological developments (including technological convergence),
changes in the structure of communication industries and changing community
perceptions and expectations about communication technologies. In particular,
the review should consider:
- whether the Acts continue to
regulate effectively communication technologies and the individuals and
organisations that supply communication technologies and communication
how these two Acts interact with
each other and with other legislation;
the extent to which the activities
regulated under the Acts should be regulated under general communications
legislation or other legislation;
the roles and functions of the
various bodies currently involved in the regulation of the telecommunications industry,
including the Australian Communications and Media Authority, the
Attorney-General’s Department, the Office of the Privacy Commissioner, the
Telecommunications Industry Ombudsman, and Communications Alliance; and
whether the Telecommunications
(Interception and Access) Act should be amended to provide for the role of a
public interest monitor.
The Rudd Labor Government released its first stage response to the
ALRC's report on 14 August 2009. The response committed the government to first
reforming the 'privacy foundations' and to enhancing the role of the Privacy Commissioner.
Reform would be 'technology neutral' to ensure the protection of personal
information held in any medium.
Although the first stage response addressed 197 of the ALRC's 295
recommendations, it did not address the matters set out in recommendation 71.2
or broader issues relating to reform of the TIA Act. Rather, the government
stated that it would consider the remaining recommendations of the ALRC after
the first stage response reforms had progressed. Legislation giving effect to
the government's first stage response was enacted in November 2012.
The Parliamentary Joint Committee
on Intelligence and Security—Inquiry into potential reforms of Australia’s
National Security Legislation
In May 2012, the then Attorney-General (the Hon Nicola Roxon MP)
requested that the PJCIS conduct an inquiry into a package of potential reforms
to Australia's national security legislation. The package of reforms put to the
PJCIS was comprised of 'telecommunications interception reform, telecommunications
sector security reform and Australian intelligence community reform'.
Along with the referral of the PJCIS inquiry, the Attorney-General's
Department (the department) released a discussion paper that canvassed issues
covered by the ALRC's report, including matters set out in Part J (which, as
noted above, included recommendation 71.2).
The PJCIS tabled its report in June 2013 making 43 recommendations.
Recommendations 1–18 related to the TIA Act and recommendations 42 and 43
concerned data retention. These recommendations are listed at Appendix 1. It is
noted by the committee that in February 2015 the PJCIS handed down its inquiry
report on the Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014 which seeks to introduce a two year mandatory data
retention regime in respect of telecommunications data (metadata) and implement
recommendation 42 of the PJCIS's recommendations.
The current inquiry
The committee advertised the inquiry in The Australian newspaper on
5 February 2014. Details of the inquiry were published on the committee's
website at www.aph.gov.au/senate_legalcon. The committee also wrote to over 110
organisations and individuals inviting submissions by 27 February 2014.
The committee received 46 submissions. Public submissions were published
on the committee’s website and are listed at Appendix 2. The committee held six
public hearings: on 22 and 23 April 2014, 21 July 2014, 26 September 2014 and 2
February 2015 in Canberra, and on 29 July 2014 in Sydney. The committee also
took evidence in camera. A list of witnesses who appeared at the public
hearings is at Appendix 3. The Hansard transcripts from the public hearings can
be accessed on the committee’s website.
The committee thanks all those organisations and individuals who made
submissions and gave evidence at the public hearings.
Note on references
References in the report to the committee Hansard are to the
proof committee Hansard. Page numbers between the proof committee Hansard
and the official Hansard may differ.
Scope and structure of the report
During this inquiry the committee sought to address the matters referred
to it by examining issues raised since the reviews of the ALRC and the PJCIS.
The committee took the approach that the recommendations of the ALRC's report
relating to the TIA Act (including recommendation 71.2) were, to some extent,
realised by the then Labor Government's referral of a review of potential
reforms of Australia's national security legislation to the PJCIS committee. In
that referral, the PJCIS was asked to examine many of the considerations set
out in the ALRC's recommendation 71.2.
The committee notes the breadth of the recommendations of the PJCIS that
related to the TIA Act: recommendations 1 to 18 related specifically to the
existing provisions of the TIA Act; and recommendations 42 and 43 considered
the broader policy issue of mandatory data retention. This committee notes that
although the PJCIS did not reach a consensus view on mandatory data retention
in its 2013 report, it recommended considerations that should be had if the
government were persuaded to implement such a regime.
The committee acknowledges that the 2015 PJCIS report into the
Telecommunications (Interception and Access) Amendment (Data Retention) Bill
2014 examines issues relating to data retention with greater specificity and
detail than does the 2013 report.
This report comprises three chapters. The current chapter outlines the
inquiry process. Chapter 2 considers the need for reform to the TIA Act and
chapter 3 discusses warranted access to telecommunications content.
The committee could not reach agreement in relation to access to data
and mandatory data retention. The minority reports at the conclusion of this
committee report outline committee members' views on these issues.
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