Recommendations
Recommendation 1
3.18 The Committee recommends that the Bill be amended to
include a provision amending Section 280 and subsections 282(1) and (2) of the Telecommunications Act 1997, effective
from the same date as the Bill, to make it clear that covert access to stored
communications is not permitted without a stored communications warrant.
Recommendation 2
3.42 The Committee recommends that the enforcement agencies
able to access stored communications should be limited to those agencies eligible
under the existing arrangements for telecommunications interception.
Recommendation 3
3.43 The Committee recommends that the Bill be amended to
permit stored communications warrants to be issued only in relation to criminal
offences.
Recommendation 4
3.52 The Committee recommends that the Bill be amended to
require applications for stored communications warrants, and the warrant
itself, to include information that clearly identifies the person who will be
the subject of the warrant and the telecommunications for which access is
sought.
3.53 The Committee suggests that the existing provisions
for named person warrants provide a suitable example of the type of information
that ought to be required.
Recommendation 5
3.60 The Committee recommends that the Bill be amended to
allow issuing authorities to only include those currently able to issue
interception warrants.
Recommendation 6
3.67 The Committee recommends that, consistent with the
existing arrangements for telecommunications interception, immediate action be
taken to ensure the enforceability of the stored communications provisions on
State and Territory agencies by requiring complementary legislation to be
enacted as a precondition to being granted the powers of an enforcement agency
under the stored communications regime.
Recommendation 7
3.68 The Committee also recommends that as an interim
measure, the definition of an enforcement agency in the Bill be amended to
allow for the ability to exclude an agency specified in the Telecommunications
Interception Regulations from being able to obtain a stored communications
warrant.
Recommendation 8
3.72 The Committee recommends that the Bill be amended to
allow issuers of stored communications warrants to have regard to the length of
time stored communications may have been held on a carrier's equipment and
whether the communications sought can be sufficiently identified in order to
minimise the impact on privacy.
Recommendation 9
3.73 The Committee also recommends that the Bill be amended
to require issuers of stored communications warrants to consider whether the
stored communications are likely to include communications the subject of legal
professional privilege and whether any conditions may be implemented to prevent
the disclosure of such communications.
Recommendation 10
3.81 The Committee recommends that the Bill be amended to
specify time limits within which an agency must both review their holdings of
information accessed via a stored communications warrant and destroy
information as required under the proposed section 150.
Recommendation 11
3.91 The Committee recommends that Bill be amended to
require agencies and the Minister to report on the use and effectiveness of
stored communications warrants in a manner equivalent to the existing reporting
obligations for telecommunications interception warrants.
Recommendation 12
3.92 The Committee recommends that additional resources be
provided to the Ombudsman to enable the Office to fulfil the expanded functions
under this Bill.
Recommendation 13
3.93 The Committee recommends that the Bill be amended to
extend the timeframe for section 153 reports to six months.
Recommendation 14
3.107 The Committee recommends that the Bill be amended to
ensure that copies of communications can not be accessed without a stored
communications warrant.
Recommendation 15
3.108 The Committee recommends that the definition of
'record' be amended so that it applies in relation to accessing a stored
communication.
Recommendation 16
3.109 The Committee recommends that the issue regarding
whether or not access to stored communications is accessible via the sender is
settled and the Bill be amended as necessary.
Recommendation 17
3.110 The Committee recommends that prior to the passage of
the Bill the definition of stored communications be amended so that the
Australian Communications and Media Authority's ability to enforce the Spam Act
is not limited.
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.
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.
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.
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.
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.
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.
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.
Recommendation 27
5.25 The Committee recommends that the amendments proposed
in Schedule 6 of the Bill be passed.
Recommendation 28
5.26 Subject to the amendments set out above, the Committee
recommends that the Bill be passed.
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