Chapter 6 - Other issues
International, national and state obligations
6.1
The Castan Centre for Human Rights Law (Castan Centre) submitted that
'in the absence of an express right to privacy under Australian Law,
legislation such as the TIA Act plays an important role in safeguarding the
privacy of individuals'.[1]
In particular, their submission stated that Australia should ensure it meets
its international obligations under Article 17 of the International Covenant on
Civil and Political Rights (ICCPR), which states that:
No one shall be subjected to arbitrary or unlawful interference
with his privacy, family, home or correspondence, nor to unlawful attacks on
his honour and reputation.
6.2
A representative of the NSW Council for Civil Liberties stated that the
proposed amendments for device-based warrants constitute 'an arbitrary
interference with the right of privacy' in contravention of obligations such as
the ICCPR. The representative also considered that the proposed amendments
would contravene various state and territory legislation for example, the Charter
of Human Rights and Responsibilities Act 2006 (Vic), and the Human
Rights Act 2004 (ACT)[2].
The representative said that these obligations and legislation enshrine a right
to privacy, and that:
One would (expect to) find that this committee would have before
it a statement of compatibility, prepared by the minister introducing this
bill, as to the compatibility or non-compatibility of the provisions of the
bill with that privacy right.[3]
6.3
The Committee also sought information from representatives of the
Attorney-General's Department about interception standards in any United
Kingdom legislation comparable to the TIA Act. The Department's response was
that the provisions most likely to be related to the addition of devices in a
warrant were governed by the Regulation of Investigatory
Powers Act 2000 (RIPA). The Department stated:
...RIPA makes provision for and about the
interception of communications, the acquisition and disclosure of data relating
to communications, as well as other investigatory techniques. An
important difference between RIPA and the Australian Telecommunications
(Interception and Access) Act 1979 (the TIA Act) is that the UK regime is
non-evidentiary based. As the intercepted material is not used in evidence,
RIPA has different approaches to the collection of information, use and
disclosure, and record keeping requirements.[4]
6.4
The Department further stated that the RIPA equivalent of
device-based named person warrants in the TIA Act must describe either.
(a) one person as the
interception subject; or
(b) a single
set of premises as the premises in relation to which the interception to which
the warrant relates is to take place. [And]
(2) The
provisions of an interception warrant describing communications the
interception of which is authorised or required by the warrant must comprise
one or more schedules setting out the addresses, numbers, apparatus or other
factors, or combination of factors, that are to be used for identifying the
communications that may be or are to be intercepted.[5]
6.5
The Department advised that the RIPA allows the addition of
devices to an existing warrant, which does not extend the original duration of
the warrant. A description of the approval authorities followed:
Whilst
only a Secretary of State is authorised to issue a warrant, scheduled parts of
a warrant may be modified by a Secretary of State or by a senior official
acting upon their behalf (this, except in urgent cases, does not include the
senior official who made the warrant application). A senior official is
defined in subsection 81(1) of RIPA as a member of the Senior Civil Service or
a member of the Senior Management Structure of Her Majesty’s Diplomatic
Service. These designations are equivalent to the Australian Senior Executive
Service and represents a similar proportion of the entire Civil Service/Public
Service workforce.
...
In urgent cases, and where the warrant specifically authorises it, the person
who submitted the application (...they are listed in subsection 6(2) and are
Heads of Agencies, ie Director‑General of the Security Service, the
Commissioner of Police of the Metropolis etc) or a subordinate (where
identified in the warant) may modify scheduled parts of the warrant. These
modifications are valid for five working days only unless endorsed by a senior
official acting on behalf of the Secretary of State.[6]
Five year review of the TIA Act
6.6
In its submission to the committee, the Office of the Privacy
Commissioner (OPC) reiterated its view that the operation of the TIA Act
'should be subject to overall independent review at least every five years.'[7]
The OPC considered this necessary due to the number of amendments to
interception legislation in recent years and the resulting incremental
expansion in powers.
6.7
The OPC also submitted a framework against which to assess issues such
as privacy and security. The OPC recommended that the committee consider the
amendments in the Bill against this framework because of the incremental
expansion of powers and suggested that it may also be a useful tool for
interception agencies to use.[8]
Committee findings
6.8
In relation to international obligations and state legislation, the committee
is unable to make any specific comments in the context of the current inquiry.
Nevertheless, in development of amendments to interception legislation and in
any review of that legislation, due consideration of the international
obligations must be undertaken. A summary statement in the EM of consistency
with international obligations (in lieu of an express right to privacy under
Australian law) would be a useful guide in consideration of future legislative
amendments.
6.9
In relation to the five year review process proposed by the Office of
the Privacy Commissioner, the committee draws the attention of the Senate to recommendation 4 of the committee's report on the TIA Amendment
Bill 2007, proposing an independent review of the TIA Act within five years.[9]
There has been no government response to this recommendation.
6.10
The committee also reminds the Senate of its recommendation in its
report in relation to the Provisions of the Telecommunications (Interception)
Amendment Bill 2006:
...the Bill should include a provision for the provisions to
expire in five years, with a review at that time or earlier. 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.
6.11
The Howard Government did not accept this recommendation stating:
Where it was considered appropriate, sunset provisions have been
included for specific provisions in the Bill....
However, the Government does not consider a sunset clause to be
appropriate in relation to the wider Bill. The matters proposed in this bill do
not reflect a response to a particular short term issue that is likely to
dissipate in the longer term. Rather, this legislation reflects a response to
permanent changes in the law enforcement and national security environment,
caused in large part by changes in technology. As such, it is anticipated that
these legislative provisions will assume even greater importance in future.
6.12
In this context, the committee notes that it is currently considering
amendments to the device-based warrant regime which was enacted in 2006. It
also notes that several of the issues which raised concerns in both the 2006
and 2007 bills have re-emerged in the context of the current inquiry.
Recommendation 6
6.13
The Committee recommends that the Australian Government
commission an independent review of the operation of the Telecommunications
(Interception and Access) Act 1979 within 3 years.
Recommendation 7
6.14
The Committee further recommends that the Australian Government
introduce amendments to the Telecommunications (Interception and Access) Act
1979 in subsequent legislation, to provide for a statutory requirement that
the TIA Act be independently reviewed every five years.
Recommendation 8
6.15
Subject to the preceding recommendations the committee recommends
that the Senate pass the Bill.
Senator Trish Crossin
Chair
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