Telecommunications Privacy Laws

Last Updated: 19 Oct 2006

Contents

Telecommunications Privacy Laws

The primary Australian laws relevant to privacy protection of telecommunications, including on-line communications, are:

  • Telecommunications (Interception and Access) Act 1979 (C'th)
    This Act prohibits the interception of communications passing over a telecommunications system and prohibits access to stored communications (i.e. email, SMS and voice mail messages stored on a carrier's equipment) except where authorised in specified circumstances. Amendments to the Act effective from 13 June 2006 established a regime governing access to stored communications held by a telecommunications carrier (includes ISPs). This included creation of a new type of warrant named a "stored communications warrant" which law enforcement agencies are required to obtain in order to lawfully access, from a carrier, email, SMS and voice mail messages that are stored on a carrier's equipment. For more detail about the provisions, see EFA's outline of the Telecommunications (Interception and Access) Act 1979.
  • Telecommunications Act 1997 (C'th)
    Part 13 of this Act, titled "Protection of Communications", obligates telecommunications carriers and carriage service providers, including Internet Service Providers (ISPs), to protect the privacy of communications and personal information about telecommunications users, except in specified circumstances. For more detail about the provisions, see EFA's outline of Part 13 of Telecommunications Act 1997.
  • Surveillance Devices Act 2004 (C'th) and similar legislation in some States/Territories.
    Although this legislation is not directly relevant to telecommuncations, it is listed here because it regulates the use of surveillance devices, including data surveillance devices such as computer keyboard logging devices, by law enforcement agencies. See EFA's Surveillance Laws & Powers page.

Recent History of Telecommunications Privacy Laws

These laws are intended to protect privacy of on-line communications and other telecommunications, by generally prohibiting interception, surveillance and disclosure and regulating access to communications by law enforcement agencies. However, in recent years the balance has been shifting away from privacy protection to allowing greater access and surveillance by government agencies.

Prior to 15 December 2004, the content of communications (email, SMS and voice mail messages) temporarily delayed and stored during transit over a telecommunications system was not available to law enforcement agencies from telecommunications service providers without an interception warrant issued under the Telecommunications (Interception) Act 1979 (C'th).

However, that Act was amended in December 2004 to exclude so called "stored communications" from the scope of the protection of the Act. (The amendments were the government's third attempt since early 2002 to amend the Act in relation to email, SMS and voice mail messages - the previous two Bills had not been enacted due to substantial opposition to the proposed changes). As a result, during the period 15 December 2004 to 12 June 2006 access to the content of such communications was regulated only by Part 13 of the Telecommunications Act 1997 and therefore the content of email, SMS and voice mail messages had become available to a vastly larger number of government agencies in vastly more circumstances both with, and without, a general search warrant. For more detailed information on the effect of the amendments, see EFA's June 2004 submission to the Senate Committee inquiry into the Telecommunications (Interception) Amendment (Stored Communications) Bill 2004.

The December 2004 amendments were subject to a twelve month sunset clause and the government stated that it intended to undertake a comprehensive review of the Act and amendments during that twelve months. The Review of the Regulation of Access to Communications under the Telecommunications (Interception) Act 1979 ("the 2005 Review") was announced in March 2005 and public submissions sought.

In May 2005 EFA sent a comprehensive submission to the 2005 Review recommending changes to the existing access regime. EFA considered the provisions of the Telecommunications Act 1997 to be totally inadequate for protecting the privacy of electronic communications. The then current situation which permitted access to so-called "stored communications" in accordance with "some other form of lawful authority, such as a search warrant" (something other than an interception warrant) was fraught with problems, as detailed in EFA's submission, that required substantial legislative amendments.

The 2005 Review Report, prepared by the independent consultant Mr Tony Blunn AO, was tabled in Parliament in September 2005. Mr Blunn's findings include, among many other things, that:

"- the present distribution of functions relating to accessing telecommunications data for security and law enforcement purposes between Parts 13, 14 and 15 of the Telecommunications Act 1997 and the Telecommunications (Interception) Act 1979 is complicated, confusing and dysfunctional;

- as presently structured, the Telecommunications (Interception) Act 1979 is not an appropriate vehicle for accessing other than real time communications;

- the provisions of the Telecommunications Act 1997 governing access to stored communications are inadequate and inappropriate;

- the provisions of subsections 282(1) and (2) of the Telecommunications Act 1997 should be reviewed to better identify their scope and make clearer their operation;"

EFA was pleased to observe the above findings because they express substantially the same opinion on those matters as EFA had submitted to the review.

When tabling the 2005 Blunn Review Report, the Federal Attorney General introduced a Bill which, among other things, extended the sunset clause for a further six months to 15 June 2006. The Attorney General stated this was necessary in order for the government to have sufficient time to consider the Report and its recommendations.

Subsequently, during February/March 2006, the Telecommunications (Interception) Amendment Bill 2006 was introduced into, and passed by, Federal Parliament. The Bill included amendments establishing a regime to govern access to stored communications held by a telecommunications carrier which significantly improved privacy protection for email, SMS and voice mail messages. The provisions establishing a new type of warrant, named a "stored communications warrant", were similar to recommendations made by EFA to the Blunn Review, hence EFA generally supported those provisions of the Bill. However, the Bill also included provisions enabling the interception of communications of an innocent third party ("B-Party") known to communicate with a person of interest, which EFA opposed. For more information, see EFA's page about the Bill.

The 2006 amendments referred to above commenced operation on 13 June 2006 and the Telecommunications (Interception) Act 1979 was renamed to the Telecommunications (Interception and Access) Act 1979.

As at 19 October 2006, not all of the Blunn Review recommendations have been implemented. However the government stated, in conjunction with introduction of the above amendments, that other recommendations were under consideration with a view to introducing further amendments in the Spring 2006 sessions of Parliament.

Proposed Laws (Bills) & Parliamentary and Government Inquiries

The listing below contains information about Bills and inquiries related to telecommunications legislation. (For information about other inquiries that have included, or resulted in, proposals that present threats to Internet users' privacy and/or anonymity, e.g. seeking to require ISPs to store activity logs, introduce 100 point ID checks, etc, see EFA's Security/Cybercrime Page.)

Telecommunications (Interception) Amendment Bill 2006

This Bill was introduced into Parliament in February 2006 and was passed by Parliament in February/March 2006. Schedules 1, 2 and 3 (re stored communications, B-Party interception, equipment based interception) commenced operation on 13 June 2006. The Bill included amendments establishing a regime to govern access to stored communications held by a telecommunications carrier which will improve privacy protection for email, SMS and voice mail messages. However, it also included provisions enabling the interception of communications of an innocent third party ("B-Party") known to communicate with a person of interest. See EFA's page about the Bill.

Review of the Regulation of Access to Communications under the Telecommunications (Interception) Act 1979

  • Federal Attorney General Media Release: Review To Ensure Telecommunications Interception Remains Relevant To 21st Century, 18 March 2005.
    "...Mr Ruddock said the review was needed to ensure the interception regime remained effective and suited to modern forms of communication.
    'When the Act was drafted almost 25 years ago, Australian telecommunications consisted largely of land based services carrying live telephone conversations,' he said.
    'The Act was therefore built around a core concept of fixed line telephone communication.
    'While this concept is technologically neutral, its application to modern communications such as e-mails and mobile telephone calls has proven much more difficult.'
    Tony Blunn AO has been appointed to undertake the review of the regulation of access to communications under the Telecommunications (Interception) Act 1979. ...    "
  • EFA submission to the Review of the Regulation of Access to Communications under the Telecommunications (Interception) Act 1979, 20 May 2005.
  • Report of the Review of the Regulation of Access to Communications, Anthony S Blunn AO, August 2005 (tabled in the House of Representatives by the Federal Attorney General on 14 September 2005). Among many other things, Mr Blunn found that:
    "- the present distribution of functions relating to accessing telecommunications data for security and law enforcement purposes between Parts 13, 14 and 15 of the Telecommunications Act 1997 and the Telecommunications (Interception) Act 1979 is complicated, confusing and dysfunctional;
    - as presently structured, the Telecommunications (Interception) Act 1979 is not an appropriate vehicle for accessing other than real time communications;
    - the provisions of the Telecommunications Act 1997 governing access to stored communications are inadequate and inappropriate;
    - the provisions of subsections 282(1) and (2) of the Telecommunications Act 1997 should be reviewed to better identify their scope and make clearer their operation;"

Telecommunications (Interception) Amendment (Stored Communications and Other Measures) Bill 2005

This Bill, among other things, extended the sunset period in relation to "stored communications" from twelve months to eighteen months. It was introduced into Parliament on 14 September 2005 (the same days as the 2005 Review Report was tabled), and completed its passage through Parliament on 8 December 2005.

Telecommunications (Interception) Amendment (Stored Communications) Bill 2004

This Bill was introduced into Parliament on 27 May 2004. It was the Commonwealth Government's third attempt since early 2002 to amend the Telecommunications (Interception) Act 1979 ("the TI Act") in relation to email, SMS and voice mail messages. The stored communications provisions of this Bill are substantially the same as the proposed and rejected provisions of the TI Bill 2002. Moreover, this Bill is even more objectionable than the 2002 proposal because it completely removes email, SMS and voice mail messages (stored communications) from the scope of the protection of the TI Act. The Bill was enacted in December 2004 with a twelve month sunset clause applicable to the amendments, which was subsequently extended for an additional six months. For further information about the legislation, see separate page.

Telecommunications (Interception) Legislation Amendment Bill 2004

The Federal Government introduced this Bill into Parliament on 19 February 2004. It contained proposed changes to telecommunications interception laws in relation to messages delayed and stored during transit, such as email and SMS, as well as a number of other changes. On 3 March 2004, the Senate referred the Bill to the Senate Legal and Constitutional Legislation Committee for inquiry and report by 30 March 2004. The provisions concerning email, SMS and voice mail messages were not enacted. For further information about this Bill, see separate page.

Telecommunications Interception Legislation Amendment Bill 2002

On 20 March 2002, the Senate referred this Bill (and several others) to the Senate Legal and Constitutional Legislation Committee for inquiry into the "Security Legislation Amendment (Terrorism) Bill 2002 [No. 2] and Related Bills". The provisions concerning email, SMS and voice mail messages were not enacted. For further information about the Telecommunications Interception Legislation Amendment Bill 2002, see separate page.

Telecommunications Interception Legislation Amendment Bill 2001

This Bill was tabled in the House of Representatives on 27 September 2001. On the same day, the Federal Attorney General issued a media release titled "Interception of Telecommunications in Arson and Child Pornography Cases". For further information about the 2001 Bill, see separate page. (Note: The Bill was not voted on prior to the Federal election in October 2001, and a revised Bill was tabled in March 2002.)

Telecommunications (Interception) Legislation Amendment Bill 2000

For information about this Bill, see the Parliamentary Library Bills Digest No. 176. Amendments to the Act were approved by the Parliament in June 2000.

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