![Sample our Politics & International Relations journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5947/TOC-Subject-Sample-2021-Politics-International-Relations.jpg"})
Abstract
This article reviews the expansion of federal telecommunications interception powers, focusing on the watershed reforms enacted in 2006. The new statutory frameworks governing interception of ‘live’ and ‘stored communications’ are compared and contrasted, with a particular focus on their impact on human rights such as privacy and the fair trial. The article identifies significant regulatory loopholes and deficiencies in this new system, casting doubt on the usefulness of adopting a ‘balancing’ model to guide either macro‐level policy development or micro‐level decision‐making relating to individual warrants.
Notes
1. This article is adapted from the conference paper ‘Regulating telecommunications interception and access: a sea‐change in surveillance laws’, in Michael and Michael (eds), Social Implications of Information Security Measure on Citizens and Business, University of Wollongong Press, 29 May 2006. This research forms part of a wider ARC funded project monitoring legal changes post‐9/11 (DP 451473) ‘Terrorism and the Non‐State Actor after September 11: The Role of Law in the Search for Security’. The authors would like to thank Niamh Lenagh‐Maguire for her excellent research and editorial assistance.
2. Anthony Blunn, Report of the Review of the Regulation of Access to Communications, 2005.
3. A recent review of the federal terrorism laws noted that TI warrants for terrorism‐related offences had been issued more than 20 times since 2002, with one operation leading to the arrest of 19 terrorist suspects in NSW and Victoria: Report of the Security Legislation Review Committee, 2006. Available at: http://www.ag.gov.au/slrc.
4. S. Bronitt and J. Stellios, ‘Telecommunications interception in Australia: recent trends and regulatory prospects’, Telecommunications Policy, 29, 2005, p. 875.
5. Telecommunications (Interception and Access) Act 1979 (Cth), Part 2.2.
6. Federal law enforcement agencies are the Australian Federal Police and the Australian Crimes Commission: see definition of ‘Commonwealth agency’, Ibid., s 5.
7. The definition of ‘eligible authority’ in s 5 covers State police forces and other listed State crime and corruption agencies.
8. Telecommunications (Interception) Act 1979: Report for the Year ending 30 June 2005, Table 1.
9. The Commonwealth Ombudsman plays an important oversight role in relation to TIA undertaking periodic compliance audit of interception records to ensure agency compliance with the Act. However, no system of audit is entirely fail‐safe as revealed in the 1986 Stewart Royal Commission that incidentally uncovered widespread wiretapping by NSW police in flagrant breach of the requirements of federal law: see P. Grabosky, Wayward Governance: Illegality and its Control in the Public Sector, AIC, Canberra, 1989, p. 47.
10. See Telecommunications (Interception and Access) Act 1979 (Cth), ss 9, 9A, 11B, 11C, 45, 45A, 46, 46A. In relation to the collection of foreign intelligence there are foreign communications warrants which authorise broader interceptions than service or named person warrants (s 11C).
11. Ibid., ss 9A(3) and 46A(3). The Second Reading Speech said that this latter situation ‘covers instances in which agencies may be able to identify all services, but is impractical to intercept each service. For example, a person of interest may transfer hundreds of different Subscriber Identity Module (SIM) cards through a mobile handset in quick succession. Interception of each telecommunications service (currently identified by reference to the SIM card) is extremely impractical to achieve before the person of interest changes the SIM card being used’.
12. See submissions of Electronic Frontiers Australia, noted in Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Provisions of the Telecommunications (Interception) Bill 2006, para. 4.118.
13. Blunn, op. cit., para. 3.2.2.
14. Ibid., para. 3.3.5.
15. Senate Legal and Constitutional Legislation Committee, op. cit., para. 4.122.
16. Ibid., para. 4.125.
17. Telecommunication (Interception and Access) Act 1979 (Cth), s 9(1)(a)(ia) and (b) for national security purposes; s 46(1)(d)(ii) for law enforcement purposes.
18. The US federal wiretap regime generally [18 USC § 2510, Ch 119 (1994)] imposes a duty of minimisation on law enforcement officials: ‘Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in thirty days’.
19. Senate Legal and Constitutional Legislation Committee, op. cit., Recs 22–24.
20. See the Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Provisions of the Telecommunications (Interception) Amendment Bill 2004, 2004a; Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Provisions of the Telecommunications (Interception) Amendment (Stored Communications) Bill 2004, 2004b.
21. Blunn, op. cit., para. 1.8.1.
22. Ibid., para. 1.6.1.
23. Ibid., para. 1.6.3.
24. Telecommunications (Interception and Access) Act 1979 (Cth), s 5(1).
25. Supplementary Explanatory Memorandum, Telecommunications (Interception) Bill 2006 (Cth), s 2.
26. Telecommunications (Interception and Access) Act 1979 (Cth), s 108(2)(b).
27. Ibid., s 108(2)(a).
28. Ibid., s 108(3).
29. Explanatory Memorandum, Telecommunications (Interception) Bill 2006 (Cth), 10.
30. Telecommunications (Interception and Access) Act 1979 (Cth), s 116.
31. Blunn, op. cit., para. 1.4.2.
32. See, for example, Evidence to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, 15 March 2006, Professor George Williams, pp. 28, 31.
33. Commonwealth of Australia, Parliamentary Debates, Senate, 28 March 2006, p. 85.
34. See Submission to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, March 2006, New South Wales Council for Civil Liberties, p. 3; Submission to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, March 2006, Australian Privacy Foundation.
35. Blunn, op. cit., para. 1.6.3.
36. Senate Legal and Constitutional Legislation Committee, op. cit., para. 3.39.
37. Ibid., Rec. 2, para. 3.42.
38. Ibid., Rec. 6, p. 3.67. Or, at least as an interim measure, that the definition of enforcement agency be amended to allow an agency to be excluded from being able to obtain a stored communication warrant (Rec. 7, para. 3.68).
39. Ibid., Rec. 3, para. 3.43.
40. Ibid., Rec. 5, para. 3.60.
41. Commonwealth of Australia, Parliamentary Debates, Senate, 29 March 2006, p. 42.
42. It should be noted that Senator Ellison also tried to justify the different treatment on the basis that an interception warrant involves ongoing monitoring, whereas a stored communication warrant involves access at a fixed point in time to information already received (Ibid., p. 43). While there may be such a difference, it still remains unclear why this should be a relevant consideration supporting less stringent treatment for stored communications warrants. To the contrary, the retroactive nature of stored communications warrants suggests that more stringent measures be put in place for stored communications warrants.
43. Telecommunications (Interception and Access) Act 1979 (Cth), s 108. The amending provision originally referred only to the knowledge of the recipient, but was amended in the Senate following somewhat confused debate: Commonwealth of Australia, Parliamentary Debates, Senate, 29 March 2006, p. 86; 30 March 2006, p. 3.
44. Telecommunications (Interception and Access) Act 1979 (Cth), s 108(1A).
45. See Commonwealth of Australia, Parliamentary Debates, Senate, 29 March 2006, p. 86.
46. The federal electronic surveillance statutes have been codified at 18 USC 2510. Section 2511(2)(c) of Title 18 provides that ‘It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has give prior consent to such interception’. This practice has been held not to violate the Fourth Amendment: United States v White, 401 US 745 (1971).
47. New South Wales Law Reform Commission, Surveillance: An Interim Report, Report No. 98, 2001.
48. Bronitt and Stellios, 2005, op. cit., p. 887.
49. Blunn, op. cit., p. 5.
50. Ibid., para. 7.
51. For a review of the law relating to undercover policing that critiques the balancing approach, see S. Bronitt, ‘The law in undercover policing: a comparative study of entrapment and covert interviewing in Australia, Canada and Europe’, Common Law World Review, 33, 1, 2004, p. 35.
52. A. Ashworth, ‘Crime, community and creeping consequentialism’, Criminal Law Review, 43, 1996, pp. 220–30; S. Bronitt, ‘Electronic surveillance, human rights and criminal justice’, Australian Journal of Human Rights, 3, 2, 1997, p. 183. For recent essays critiquing the deployment of the balancing approach in the context of special laws to advance the war on terror, see J. Waldron, ‘Security and liberty: the image of balance’, The Journal of Political Philosophy, 11, 2, 2003, p. 191; L. Zedner, ‘Securing liberty in the face of terror: reflections from criminal justice’, Journal of Law and Society, 43, 4, 1995, p. 507.
53. New South Wales Law Reform Commission, op. cit.
54. Ibid., para. 2.4.
55. The legal issues surrounding this issue are discussed in Bronitt, 1997, op. cit., pp. 201–3.
56. See Senate Legal and Constitutional Legislation Committee, op. cit., Rec. 24, para. 4.97. There was some debate in the Senate as to how many Senate Committee recommendations the government had adopted: see Commonwealth of Australia, Parliamentary Debates, Senate, 30 March 2006, pp. 1–2.
57. Zedner, op. cit., pp. 510–1.
58. The phrase ‘uncivil politics of law and order’ was used before 9/11 to describe the trend to drive criminal justice reform in Australia by reference to law and order commonsense rather than informed expert opinion or available data: R. Hogg and D. Brown, Rethinking Law and Order, Pluto Press, Annandale, 1998, Ch. 1.
59. Since finalising this article for publication, the ALRC has commenced wide‐ranging review of privacy. In its Issues Paper (IP 31), Review of Privacy (September 2006) the ALRC poses the important question whether the Telecommunications (Interception and Access) Act 1979 (Cth) provides ‘adequate and effective protection for the use, disclosure and storage of personal information’?
60. Bronitt and Stellios, 2005, op. cit., p. 885.
61. Senate Legal and Constitutional Legislation Committee, op. cit., para. 5.9.
62. Blunn, op. cit., para. 6.4.
63. See Telecommunications (Interception) Act 1979: Report for the Year ending 30 June 2005, Table 1. For the year ending 30 June 2005, only six of the 2,889 applications were refused or withdrawn.
64. Queensland Police Powers and Responsibilities Act 1997 (Qld), s 159.
65. See The Hon Phillip Ruddock MP (Attorney‐General), Queensland Government Wrong on Interception Amendments, Press Release, 17 July 2006. It should be noted, however, that this opposition was not previously applied to the federal scheme for imposing control orders for the purpose of protecting the public from terrorist acts. Under the federal legislation, the PIM in Queensland is permitted to make submissions to the issuing court where the person subject to the order is a Queensland resident or the issuing court is located in Queensland: Criminal Code 1995 (Cth), s 104.14.
66. Grollo v Commissioner of Australian Federal Police (1995) 184 CLR 348.
67. See Telecommunications (Interception) Act 1979: Report for the Year ending 30 June 2004, para. 4.45.
68. Telecommunications (Interception) Act 1979: Report for the Year ending 30 June 2005, Table 28. These figures, however, may not be a true reflection of the actual number of judges who are prepared to participate as many of them have not formally withdrawn their consent to issue warrants.
69. Ibid., Table 29.
70. See Senate Legal and Constitutional Legislation Committee, op. cit., para. 3.55.
71. See Ibid. Rec. 25, para. 4.112. This recommendation was supported by The Democrats’ Supplementary Report.
72. Commonwealth of Australia, Parliamentary Debates, Senate, 30 March 2006, p. 37.
73. The Hon Philip Ruddock MP, Enhanced Interception Powers and Privacy Protections, Press Release, 30 March 2006.
74. Ibid.
75. Ibid.
76. Bronitt and Stellios, 2005, op. cit., p. 887.