Telecommunications (Interception) Amendment Bill 2006

Last Updated: 12 Oct 2006

This Bill was passed by Federal 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. (For information about the legislation effective from 13 June 2006, see EFA's Telecommunications Interception & Access Laws page.)

Contents:

Background

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). As a result, since 15 December 2004 access to the content of such communications had been 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 considers the provisions of the Telecommunications Act 1997 are totally inadequate for protecting the privacy of electronic communications. The situation since December 2004 of permitting 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) is fraught with problems, as detailed in EFA's submission, that require substantial legislative amendments.

The 2005 Review Report ("the Blunn 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;"

When tabling the 2005 Review Report in September 2005, the Federal Attorney General introduced a Bill which, among other things, extended the sunset clause for a further six months to 14 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, in February/March 2006, the Telecommunications (Interception) Amendment Bill 2006 was introduced into, and passed by, Parliament. It is expected to become operative during mid 2006.

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The Bill

Telecommunications (Interception) Amendment Bill 2006

The Telecommunications (Interception) Amendment Bill 2006 amends the Telecommunications (Interception) Act 1979 to implement some of the recommendations of the Report of the Review of the Regulation of Access to Communications (the Blunn Report). It also makes other amendments that were not recommended in the Blunn Report.

The purpose of the Bill is to:

  • establish a regime to govern access to stored communications held by a telecommunications carrier. This includes creation of a new type of warrant named a "stored communications warrant" which law enforcement agencies will be required to obtain in order to lawfully access (without the knowledge of the sender or recipient) email, SMS and voice mail messages that are stored on a telecommunications service provider's equipment (Schedule 1);
  • enable the interception of communications of an innocent third party ("B-Party") known to communicate with a person of interest (Schedule 2);
  • enable equipment-based interception of telecommunications services on the basis of a telecommunications device number (Schedule 3);
  • remove the distinction between class 1 and class 2 offences for which telecommunications interception powers are available to law enforcement agencies (Schedule 4);
  • remove the Telecommunications Interception Remote Authority Connection function currently exercised by the Australian Federal Police and transfer the associated warrant register function to the Department administering the legislation (Schedule 5); and
  • make other necessary amendments to the Act to ensure the ongoing effective operation of the interception regime in Australia (Schedule 6).

For a more detailed overview of the provisions of the Bill, see Chapter 2 of the Senate Legal & Constitutional Committee's Report on the Bill.

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Detailed Analysis / EFA Submission

EFA generally supports the stored communications provisions. They will unquestionably result in a vastly more appropriate situation than has existed since December 2004. We consider, however, that some definitions may need amendment to ensure clarity of intent, that some aspects of the provisions relating to issue of warrants could be improved, and that the safeguards and accountability measures are not adequate. EFA strongly objects to the so-called "B-Party" provisions which vastly expand the circumstances in which, and the frequency with which, non-suspects' telecommunications services may be intercepted and monitored.

EFA's submission (including Executive Summary) to the Senate Legal & Constitutional Legislation Committee contains a detailed analysis of the Bill together with commentary on issues of concern to EFA. EFA also presented oral testimony during the Committee's hearing on 15 March 2006 and subsequently sent a supplementary submission responding to a Question on Notice.

Subsequently, the Committee made 28 recommendations, many of which were substantially similar to recommendations made by EFA. However, very few of the Committee's recommendations were implemented in the Government's amendments to the Bill. The Attorney General said that the Government may decide to implement other recommendations at a future time after the Government had had time to fully consider all the recommendations.

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Senate Committee Inquiry

On 1 March 2006, the Senate referred the provisions of the Bill to the Senate Legal and Constitutional Legislation Committee for inquiry and report by 27 March 2006.

  • Committee web page: Inquiry into the Telecommunications (Interception) Amendment Bill 2006

  • Submissions to the Inquiry:
  • Public Hearing, Hansard Transcript [PDF], Sydney, 15 March 2006
    (Witnesses: Electronic Frontiers Australia, Gilbert + Tobin Centre for Public Law, Law Council of Australia, NSW Council for Civil Liberties, Office of the Privacy Commissioner, Attorney-General's Department, Australian Federal Police, Australian Securities and Investment Commission.)

  • Senate Committee Report and Recommendations, 27 March 2006
    The Committee made 28 recommendations primarily intended to improve privacy protections, accountability and transparency mechanisms. The vast majority of the Committee's 15 recommendations in relation to stored communication warrants were substantially similar to recommendations made by EFA. The recommendations concerning "B-Party" (innocent third party) interception warrants would be a substantial improvement on the original Bill (although EFA is opposed to innocent third party interceptions).

Following the Senate Committee Report, the Government tabled some amendments to the Bill which were passed by the Parliament (see Text of Amendments and associated Supplementary Explanatory Memorandum).

The ALP also tabled amendments to give effect to the numerous other recommendations made by the Senate Committee, however, the Government declined to pass those amendments. In response to criticism by the Shadow Attorney General (Ms Roxon) concerning failure to pass the ALP's proposed amendments, the Attorney General Mr Ruddock stated in the House on 30 March 2006 that:

"... I conclude by saying that this bill is to deal with matters that would otherwise be the subject of a sunset clause dealing with stored communications. We did not want to see those important measures come to an end, and that is why the legislation has been progressed not in haste but to ensure that these issues have been dealt with before that sunset clause comes into effect. The government will continue to consider in detail the committee report and the recommendations as part of its ongoing commitment to ensuring the regime achieves an appropriate balance. If there are further amendments that are thought to be appropriate following the consideration of the committee report, we will propose further amendments in the spring session of parliament. ..."
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Status of the Bill

16 February 2006: Bill introduced into the House of Representatives.

1 March 2006: Bill passed by the House of Representatives and introduced into the Senate.

28 March 2006: Senate commenced debate on the Bill.

30 March 2006: Bill passed by the Senate, with a number of amendments made by the Government (see above).

30 March 2006: Amended Bill passed by the House of Representatives.

Royal Assent: 3 May 2006, according to the Bills List.

Date of Commencement: Schedules 1, 2 and 3 (re stored communications, B-Party interception, equipment based interception) commenced on 13 June 2006.

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