Privacy Law and Policy Reporter
One of the more significant amendments to the Telecommunications (Interception) Act is the expansion of the 'class 2 offences' for which interception warrants may be issued (Sch 1, cl 2 of the Bill). The present class 2 offences cover a range of serious offences (such as drug offences and offences against the person and against property), the penalty for which must be at least seven years.
The amendments would add a number of offences of a similar degree of seriousness and carrying similar penalties, such as offences involving bribery and corruption of government officials. However, they would also include offences against Pt VIA of the Crimes Act 1914 (Cth), which deals with offences involving computers. The penalties for some of these offences is as little as six months.
Although the Bill expands the range of offences for which interception warrants are available, it also increases the accountability of law enforcement agencies for their use of intercepts (Sch 1, Pt 5 of the Bill). Law enforcement agencies would be required under the amendments to report on the average cost of warrants and the percentage of warrants resulting in information which is used or is likely to be used in the prosecution of offences.
However, the reporting requirements still would not be as comprehensive as those of other jurisdictions such as the US, where the Wiretap Report is issued annually by the Administrative Office of the US Courts.
The Bill would create civil rights of action for interceptions which occur in breach of the Telecommunications (Interception) Act and for the communication to other persons of information obtained from such intercepts (Sch 1, Pt 3 of the Bill). A range of civil remedies would be available to aggrieved persons, including damages and injunction. An action for wrongful interception would not appear to lie against law enforcement agencies or officers who have intercepted telecommunications under warrant unless there has been a substantial defect or irregularity in the warrant.
The Bill also amends the general telecommunications and public mobile phone licence conditions under the Telecommunications Act 1991 (Sch 2 of the Bill). The Bill provides that the Minister may give a licensee notice requiring the licensee's existing or proposed telecommunications system to have a specified kind of interception capability, and imposes an obligation on the licensee to comply with the notice.
At first blush, this may not seem very different from the existing conditions under the General Licence Declaration and the Public Mobile Phone Licence Declaration (issued pursuant to the Telecommunications Act) which deal with interception capabilities. The current conditions provide that a licensee must not operate a telecommunications network unless it is possible to execute a warrant under the Telecommunications (Interception) Act on the network, or the network is otherwise authorised by the Minister. However, the proposed amendments could allow the introduction of a national encryption standard through the notice-issuing procedure, effectively bypassing parliamentary consideration and public consultation.
The Bill was introduced primarily as a response to the Review of the Long-Term Cost-Effectiveness of Telecommunications Interception (the Barrett Report), which made several recommendations for legislative change. Many of these recommendations, including the expansion of the 'class 2 offences' and improved reporting requirements, have been adopted by the Bill. However, the Report made a number of privacy-positive recommendations which were omitted from the Bill.
In particular, the Bill fails to adopt the Report's recommendation that innocent subjects of telecommunications interceptions should be notified that interception occurred. Nor has the Bill adopted the recommendation for the supply of call data to occur under warrant, rather than under administrative arrangement as presently occurs.
The Bill was referred to the Senate Legal and Constitutional Affairs Committee.