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Chapter: 

II. Surveillance policies

Telecommunications

A complex mix of privacy standards applies to the telecommunications sector. The Telecommunications Act 19971 contains a detailed list of exceptions from a basic presumption of confidentiality of customer records.2 These exceptions are similar to those in the Use and Disclosure Principles of the federal Privacy Act. An Industry Forum prepares detailed codes and guidelines, some of which are binding.3 A Code of Practice on the Protection of Customer Personal Information that was binding on all telecommunications carriers and service providers was de-registered once the private sector amendments to the federal Privacy Act took effect. The enforcement position remains confusing, with the Australian Communications and Media Authority (ACMA); the Telecommunications Industry Ombudsman and the Privacy Commissioner all having overlapping jurisdictions. There is also a binding Code of Practice on Calling Number Display (CND),4 which requires carriers to offer free per call and per line blocking (but only on an opt-out basis) and attempts to impose guidelines on telephone users' use of CND information. Other Codes deal incidentally with privacy issues such as directories, numbering and emergency calls

Complaints were made in 2003 to both the ACA (as the ACMA was then known) and the Privacy Commissioner about the use by ISPs of "blocked" CND information (including on silent lines).5 The ACA investigation found unlawful conduct, but declined to take action. Findings by the Privacy Commissioner, and by the Ombudsman in relation to the ACA’s failure to act, are awaited. The ACMA has also investigated the use of telephone directory data and in May 2005 issued a draft Standard, with a further revised draft issued in April 2006.6

The Telecommunications (Interception) Act of 19797 regulates the interception of telecommunications. A warrant is required under the Act and it also provides for detailed monitoring and reporting. However, the Interception Act safeguards need to be read alongside Part 15 of the Telecommunications Act 1997 that places obligations on telecommunications providers to provide an interception capability and positively assist law enforcement agencies in relation to interception. There have been several changes to the interception regime in recent years, including broadening the range of offenses for which warrants can be obtained; allowing more law enforcement agencies to apply for warrants and more of them to execute warrants themselves; and transferring the warrant issuing authority from federal court judges to designated members of the Administrative Appeals Tribunal (who are on term appointments rather than tenured and are arguably less independent). Significant loopholes exist within the legislation, and uncertainty in relation to allowable "participant monitoring."8

Telecommunications interception activity continues at a high level. In 2005-06, the number of warrants issued for telecommunications intercepts was 2,934, of which only 5 were withdrawn or refused.9 Statistics are not yet available on the numbers of warrants issued to access emails and text messages, under new stored communications warrant powers passed by Parliament in March 2006.10 The new powers extend to all the communications of ‘innocent’ people, known as B-parties, who have communicated with someone suspected of a crime. The Government does not need to tell B-parties that their communications have been monitored.11

Additional federal legislation has further weakened surveillance protections. The Surveillance Devices Act 2004 increased the number of offenses for which surveillance may be initiated by law enforcement and anti-corruption agencies (both Federal Government and State/Territory agencies), and broadened the justifications beyond criminal matters to also include child recovery.12 The types of surveillance available are data surveillance, listening devices, optical surveillance and tracking devices. Warrants may be issued by a judge, a member of the Administrative Appeals Panel, or even, in exceptional circumstances, by a senior public servant

The first annual report on the operations of the Surveillance Devices Act, produced by the Attorney-General’s Department, noted that in the six and a half months of operation to July 2005, 235 warrants were issued to the Australian Federal Police, and a further 22 to the Australian Crime Commission. No applications for warrants were refused.13 A further 33 tracking device authorisations were made within those two agencies, without seeking a warrant; again, no requests were refused. The warrants and authorisations led to 73 arrests and 71 prosecutions, but only 5 convictions during the reporting year

The Crimes Act14 also contains a range of other privacy related measures, such as offenses relating to unauthorized access to computers, unauthorized interception of mail and telecommunications and the unauthorized disclosure of Commonwealth government information.15

In September 2003, an online censorship bill was passed, allowing the Australian Broadcasting Authority and the Office of Film and Classic Literature to withhold information regarding what online information is being restricted.16 The amendments to the Freedom of Information (FOI) Act prevent public scrutiny (and potential criticism) of the operation of the Federal Internet censorship regime that became operative on January 1, 2000. The Act restricts the details regarding the net blocking system that restricts access to material that is "objectionable" or "unsuitable for minors."17 Under Australia's FOI law, the agencies may withhold information regarding their practices and the details of their agency operations. Earlier in 2003, Electronic Frontier Australia (EFA) and other civil liberties groups had opposed the Internet content regime put in place under the Broadcasting Services Act, and had tracked the operation of the laws through FOI applications.18

Law Enforcement & Security

In 2001 the Prime Minister announced the establishment of a national digital database of DNA and fingerprint samples in order to facilitate law enforcement.19 CrimTrac, a Commonwealth agency, coordinates the national DNA database system. The system when fully operational will enable the comparison of DNA profiles across all Australia's jurisdictions for law enforcement purposes. Commonwealth, State and Territory legislation underpin the system. A Report of a Review of Part 1D of the Crimes Act 1914 (the relevant federal law) was tabled in Parliament on 15 May 2003. The Review found that the national system is not yet operational and only one jurisdiction (New South Wales) has loaded profiles onto the relevant CrimTrac database known as the National Criminal Investigation DNA Database (NCIDD)

While there has been relatively little experience of the operation of Part 1D, the Review has recommended improved accountability arrangements both within and across Australia's jurisdictions. The Review sees effective accountability mechanisms as crucial to maintaining public confidence in the use of DNA analysis for law enforcement purposes. The Review recommends that the external scrutiny mechanisms be based upon existing cooperation between Australian Ombudsmen with involvement of Privacy Commissioners and other monitoring bodies. Under legislation proposed by the Victoria Law Reform Committee, suspected thieves would be required – if compelled by police via a court order – to submit DNA samples.20 Currently only suspects of more serious crimes, such as rape and murder, can be required to submit DNA.21

Legislative amendments in 2002 and 2003 have given the Australian Security Intelligence Organization (ASIO) significant and highly controversial new powers, including the ability to detain and question individuals suspected of having information relevant to terrorism. Despite extracting many concessions and additional safeguards from the government, the Opposition allowed the final changes through in June 2003 without ruling out the possibility of indefinite detention without charges under repeated warrants. The amendments allow ASIO to detain and question a journalist who may have information regarding suspected terrorists gained through her interviews and contacts; refusing to cooperate could result in a five-year imprisonment.22 While the amendments included a sunset clause, which lapsed in July 2006, the laws have been renewed. The budget for ASIO has doubled since September 11, 2001, after receiving an AUS 131 million boost in 2004.23

Footnotes