The Telecommunications (Interception and Access) Act 1979
This chapter of the report considers the need for reform of the Telecommunication
(Interception and Access) Act 1979 (TIA Act) and the possible approaches to
Why is reform needed?
Legislation to protect the privacy of individuals was introduced in 1960
through the Telephonic Communications (Interception) Act 1960, which
prohibited the interception of telephonic communications except where
authorised in the interests of the security of the Commonwealth.
That Act was repealed and replaced by the Telecommunications (Interception)
Act 1979 on 1 June 1980.
In 2006, the Telecommunications (Interception) Act 1979 was amended to
change the name of the Act (amongst other things) to the current Telecommunications
(Interception and Access) Act 1979 (TIA Act).
The Attorney-General's Department (the department) has advised that the
objectives of the TIA Act are as follows:
to protect the privacy of telecommunications by criminalising the
interception or accessing of communications; and
to enable law enforcement, anti-corruption and national security
agencies to investigate serious wrongdoing by allowing those agencies to apply
for warrants to intercept communications when investigating serious crimes and
threats to national security.
The objectives of the TIA Act remain largely the same as those in the
Of course, the TIA Act dates well before the age of the internet, and although
written with the aim of remaining 'technology neutral', evidence taken by the
committee indicated that it has failed to keep pace.
Support for reform
Although those who gave evidence during this inquiry had different views
on how reform should progress, there was universal support for urgent reform of
the telecommunications legislation.
Law enforcement and national security agencies
The committee heard that all law enforcement and national security
agencies agreed that the current TIA Act was at risk of becoming ineffective
without reform. For example, the Australian Crime Commission (ACC) advised the
committee that advancements in technology and security had 'diminished the
authority initially issued by Parliament in 1979 in relation to interception'.
As a result, according to the ACC there is:
...a compelling need to modernise the TIA Act to ensure
provisions keep pace with changes in technology...Because of changes in
technology, the ACC is hindered in its investigation of serious and organised
crime due to the restrictions on its ability to collect and share material
obtained under the TIA Act.
The ACC explained that, in its view, the TIA Act 'must be capable of
overcoming technological advances which are deliberately used to prevent law
enforcement from lawfully intercepting and accessing communications'.
Similarly, the Australian Security Intelligence Organisation (ASIO)
advised the committee that without modernisation not only will there be
'detrimental consequences' for Australia's national security and law
enforcement capacities, but also for individual privacy.
The Australian Federal Police (AFP) emphasised to the committee that the
need for comprehensive reform to 'avoid further degradation of existing
capability whilst ensuring transparency' was 'becoming increasingly pressing'.
In addition to these Commonwealth agencies, state and territory law
enforcement agencies also supported reform. For example, Victoria Police
expressed the view that 'holistic reform of the TIA Act' was urgently needed
'if law enforcement agencies [were] to maintain an adequate investigative
The Western Australian Police argued that the current legislative framework was
'not sufficient to adequately deal with technological change, and the attempt
to address such advancements [through constant legislative amendments had]
resulted in a complicated regime'.
Civil liberty and rule of law stakeholders
Support for reform was also expressed by stakeholder organisations that
seek to promote and protect the right to privacy and the rule of law. For
example, the Law Council of Australia (Law Council) gave its 'general support'
for a comprehensive review that considered:
...how this legislation fits within the broader surveillance
and interception legislative regime; whether the TIA Act can and should respond
to emerging technological developments; and what safeguards and other
provisions should be included in the TIA Act to ensure that it does not unduly
burden individual rights, including the right to privacy.
ThoughtWorks Australia also supported review. It observed that, as the
TIA Act had 'been amended more than 45 times since September 2001, [it]
requires an overhaul to bring it into the digital age, to properly integrate
Australia's National Privacy Principles, and to uphold...[Australia's]
obligations under international human rights law.'
Blueprint for Free Speech similarly noted that it would be 'prudent to
modernise the legislation to account for new technology and new challenges
faced in gathering evidence for criminal investigations'.
Approach to reform
The findings of the ALRC and PJCIS reports and evidence received
throughout the inquiry indicate that legislative reform must seek to achieve
administrative efficiencies, remain technology neutral and maintain adequate
oversight and privacy protections. The then Secretary of the Attorney-General's
department expressed this approach to reform succinctly:
The key driver for reform is the need to create a privacy and
access regime that is fit for the modern telecommunications environment and
that can withstand rapid technological change into the future...[R]eform of the
TIA Act...also represent[s] an opportunity to modernise and strengthen
protections afforded to Australian telecommunications, limit the range of
agencies in accessing telecommunications data while also introducing stronger
oversight mechanisms and improv[ing] the effectiveness and efficiency of the
current accountability and reporting regimes.
The department suggested that although the 'basic values underpinning
the Act are probably sound and do not require revision or amendment':
[T]he law requires agencies and other users to navigate an
incredibly complex modern communications environment using powers and
procedures designed in the 1970s...The antiquated nature of the Act presents real
and very pressing challenges for these agencies...The privacy protections and the
oversight regimes established by the Act are in better shape, but even these
protections are fragmented and, in places, internally inconsistent after 35
years of ad hoc amendment.
This approach to reform was consistent with views expressed by the
technology industry—the Internet Society of Australia (ISOC-AU) submitted that:
[A]ny legislative changes should adopt a technology neutral,
principles based approach that would better withstand technological change and
couple that with preservation of fundamental citizen rights. At least, any
changes to the legislation should avoid wherever possible being unduly
technology specific, as that obviously leads to endless amounts of specification
that would need to be adjusted on a continuing basis.
Balancing the right to privacy and national interests
Any programme of reform must balance individual and national interests
with sensitivity and maturity. The need for balance was clearly expressed by
the Australian Law Reform Commission (ALRC) following its 2006-8 review of the Privacy
Act 1988 (Cth):
As a recognised human right, privacy protection generally
should take precedence over a range of other countervailing interests, such as
cost and convenience. It is often the case, however, that privacy rights will
clash with a range of other individual rights and collective interests, such as
freedom of expression and national security. International instruments on human
rights and growing international and domestic jurisprudence in this field all
recognise that privacy protection is not an absolute. Where circumstances
require, the vindication of individual rights must be balanced carefully
against other competing rights.
Although the view that the need for urgent reform of the
telecommunications legislation was universal, the objective of protecting
privacy was not diminished. The evidence received by the committee emphasised
that the right to access telecommunications information should only be exercised
when both proportionate and appropriate. For example, the Law Council
...where a State seeks to restrict human rights, such as the
right to privacy, for legitimate and defined purposes, for example in the
context of telecommunications access and interception, the principles of
necessity and proportionality must be applied. The measures taken must be
appropriate and the least intrusive to achieve the objective.
In the context of telecommunications access and interception,
this involves balancing the intrusiveness of the interference, against
operational needs. Interception of, or access to communications, will not be
proportionate if it is excessive in the circumstances or if the information
sought could reasonably be obtained by other means.
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