Australia
Australian Telecommunication Interception and Access law
Interception is defined in the Amended TIA Act to apply to “live” or “real-time” communications, that is, communications that are “passing over a telecommunications system.” Interception “consists of listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication.” One of the fundamental issues surrounding the act of interception is that of privacy – the privacy of individuals using the telecommunications system. As the Blunn Report states, “a general tenet has always been that communications intended to be private should be private.” Balancing these privacy considerations with law enforcement and national security interests, while also expanding the definition of types of new communication technologies and modalities that also fall under the same privacy protections, is at the crux of much of the regulatory debate.
Laws Prohibiting Interception
Both the TIA Act (in its original and various amended forms), and the Telecommunication Act of 1997 clearly prohibit the interception of communications, other than in the case of specific exceptions. Specifically, and in no uncertain terms, “A person shall not:
(a) intercept;
(b) authorize, suffer or permit another person to intercept; or
(c) do any act or thing that will enable him or her or another person to intercept; a communication passing over a telecommunications system.”
Australian Federal Police Commissioner, Emmett J state the logic fundamental of s 7 as following:
“There is no doubt that the principle behind s 7 is a very important one. Any member of the community is entitled to his or her privacy and is entitled to ensure that people do not unlawfully listen in to their communications by telephone. As Sherman emphasized, “it is often not appreciated that one of the most important provisions in the Interception Act is to make it an offence to conduct unlawful interceptions.” To enforce the seriousness of this legal prohibition, any person who violates the interception provisions of the TIA Act is subject to punishment up to two years in prison. Multiple monitoring and review structures have been put in place, intended to ensure that interception activities are conducted propriately. Sherman summarizes:
“At the time of the enactment of the Interception Act in 1979 it was recognized by the Parliament that [the TI Act] was highly intrusive and that there needed to be significant safeguards built into the legislation to protect it from abuse. Accordingly, a number of important safeguards were built into the original legislation and these have been refined by legislative amendment in the intervening years.” These safeguards include both internal (warrant procedures) and external (monitoring and reporting) structures.
Exception to the Laws Prohibiting Interception
The exceptions to prohibitions on interception are related to either national security or law enforcement considerations, as specifically authorized by warrant. As TIA Act provides that the class’ of offences now are divided into serious ‘Class 1 offences’ which include murder, kidnapping, narcotic offences and, currently, terrorism offences, with less important offences elected ‘Class 2 offences’ which include serious offences involving loss of life or serious injury, serious property damage, corruption, tax, serious fraud, cybercrime, money laundering and child pornography. Aside from exceptions allowed by warrant, there is one further category of exceptions to the general prohibitions against interception, which are for only very specific circumstances where a warrant is not required. These special, warrantless exceptions include urgent law enforcement situations where there is a risk of loss of life or the infliction of serious personal injury or seriously injure another person serious or damage to property. Also, the suspecting that another party to the communication has take action that would may endanger his or her own life or create a serious threat to his or her health or safety. The urgency of the need for the act to be done, it is not reasonably practicable for an application Access to communications data by carrier employees in the course as necessary for the performance of their job duties.
National Security
National security and law enforcement agencies are treated slightly differently under the provisions of the Amended TIA Act. The national security role for exceptions to the prohibition on interception has gained particular prominence in the post-9/11 era with concerns about terrorist activity. Interception warrants for national security purposes may be issued to the Australian Security Intelligence Organization (“ASIO”). Warrants can be issued to ASIO by Attorney-General’s to intercept communications “where the communications are being used by a person who is reasonably suspected of engaging in activities prejudicial to security, and the interception will, or is likely to, assist the ASIO in its function of obtaining intelligence relevant to security.” Interception warrants can also be issued to ASIO for accessing stored communications.
Law Enforcement
The issuance of interception warrants for law enforcement purposes is only to specified criminal law enforcement agencies for the purpose of investigating specified “serious crimes”. Therefore, the inclusion of law enforcement purposes among the permissible reasons for interception activity was a development of the 1979 TI Act.70
Operation of Interception Warrants
In operation, despite the advancements and clarification made by the 2006 Amendment Act, the regulations remain subject to interpretation by law enforcement and the judiciary. There had been a degree of uncertainty about the conceptual basis and fundamental objectives of the legislation. On the one hand, In Grollo v Palmer judges explain that at least in part of TIA Act is designed to protecting of communication of privacy. In contrast, some of the courts provides that the prohibition on interception and maintain national infrastructure telecommunications levels through protection against illegal interference more willingly than directly involved in the protection of privacy. Even after the implementation of the 2006 Amendments, “operators who are subjected to the access and interception regime are being faced with the increasing difficulty of acting in the spirit, but not to the letter, of the law in matters of law enforcement.” Nicholls and Rowland identify three key problems that typically arise in the implementation of the Amended TIA Act:
Existing practices by some law enforcement agencies rely on longstanding conventions, instead of following the letter of the law. For example, “warrants which have either expired, not been properly served, or are invalid for other fundamental reasons such as mis-naming the operator on whom is it purported to have been served. Frequently, warrants incorrectly cite the grounds on which access is being demanded.”
Law enforcement agencies do not fully appreciate technical limitations that need to be applied to a given intercept or access warrant, and submit requests that are too broad or undefined in scope. Additional implementation challenges arise due to the complicated regulatory, network, and contractual complexities under which telecommunications carriers operate. Nicholls and Rowland explain that
“telecommunications operators understand that the nature of the industry requires a form and level of regulation not seen in other sectors, but inconsistent approaches to regulation and continually being made ‘the fall guys’ for the sake of a media grab does nothing to progress the carrier-law enforcement agency relationship.”
Type of Interception Warrants
The Amended TIA Act sets two types of interception warrants: firstly, telecommunications service warrant, which allows the interception of only one “service” at a time (e.g. one telephone number). The 2006 Amendment also states that warrant issue in relation to a particular telecommunications service that is likely to use by named individual. The second type is named person warrant, which allows law enforcement to intercept more than one telecommunications service used by one person (a suspect). For example, more than one telephone number, email service(s), etc. The 2006 Amendment Act also defined “Equipment-based interception”, that is, interception of communications made by means of a particular “telecommunications device” that a person is using, or is likely to use. In addition, the Explanatory Memorandum states:
A telecommunications device may be identified by any unique number including a telephone number for mobile phone handsets, a Media Access Control address for computer terminals, or an e-mail address. The definition of telecommunications number is inclusive so as not to limit the unique numbers which may be used to identify telecommunications devices, thereby maintaining a technology neutral approach to the regulation of telecommunications interception.
Duration and Authorization of Interception
Interception warrants are required to specify a time period for the warrant to be in force, up to a maximum duration of 90 days, except in the case of ‘B-Party’ warrants, in which case the maximum is up to 45 days. However, Interception warrants issued to ASIO can have duration of up to a maximum of 6 months, unless they are ‘B-Party’ warrants, which have an ASIO limit of 3 months maximum duration. The ASIO is the agency coordinating national security warrants. Only designated criminal law enforcement agencies can apply for and be issued interception warrants for law enforcement purposes (Electronic Frontiers Australia 2006).
The TIA Act identifies two types of interception warrants as following:
1. Pt 2.2 warrants can be issued by Attorney-General and Director-General to the Australian security organization for one of two purposes national security or law enforcement. The Director-General of Security may be issued national security that can be in force for no more than 48 hours in limited circumstances. Also, the Director-General of Security must make a request to the Attorney-General for the issue of warrant and the warrant can be revoked by the Attorney-General at any time before it expires. Therefore, section 10 of TIA Act provides circumstances when issuing a warrant by Director-General of Security:
a. the Attorney-General has not, to the knowledge of the Director-General of Security, made a decision with respect to the request and has not, within the preceding period of three months, refused to issue a warrant under section 9 in respect of the telecommunications service or under section 9A in respect of a person b. the Director-General of Security has not, within the preceding period of three months, issued a warrant under this section in respect of the telecommunications service or person; and c. the Director-General of Security is satisfied:
i. that the facts of the case would justify the issue of a warrant by the Attorney-General; and
ii. that, if the interception to which the request relates does not commence before a warrant
can be issued and made available by the Attorney-General, security will be, or is likely to
be, seriously prejudiced.
Pt 2.5 warrants can be issued to federal and State law enforcement agencies by eligible Judges and the Administrative Appeal Tribunal (AAT) members. Section 6 (d) states that the eligible Judge means a person who is a Judge of a court created by the Australian Parliament who is authorized to be nominated by the Minister and who had been declared Judge by the Minister to be eligible Judge for the purposes of this Act. Furthermore, a nominated AAT member who are eligible to issue interception warrant are Deputy President, full-time senior member, part-time senior member and member AAT. Part time senior or members are not eligible to issue interception warrant unless the person is qualified as Deputy President.
The High Court of Australia provides:
The applicant does not assert that, as a result of their duties under the Act as personae designate, the judges of the Federal Court in fact lack independence or would be unable to perform their duties impartially. But the independence and impartiality of those judges is not an answer to the applicant’s case. The question is not whether the impartiality and independence of federal judges make them appropriate persons to authorize the issue of telephone interception warrants. The question is whether, in the light of the separation of powers mandated by the Constitution, the functions that an “eligible Judge” performs under the Act are functions that are compatible with the exercise of federal judicial power by those judges. The Attorney-General issues authorization to the various State/Territory agencies designating them as allowed applying for warrants. In order to be authorized by the Attorney- General the State/Territory must have its own legislation in place imposing supervisory and accountability provisions parallel to the federal guidelines outlined in the Amended TIA Act. The application procedures for national security warrant must be made by Director-General of Security ASIO, while that the eligible agency may apply for interception warrant shall be made on agency’s behalf by:
1. Australian Federal Police;
2. Australian Crime Commission;
3. New South WalesPolice;
4. New South WalesCrime Commission;
5. Independent Commission Against Corruption;
6. Police Integrity Commission;
7. South AustraliaPolice;
8. Victoria Police;
9. Western AustraliaPolice;
10.Western Australian Corruption and Crime Commission; and
11.TasmaniaPolice.92
The issuing of warrant for national security in relation to a named person or a telecommunications service recognise in TIA Act as following
(a) the attorney-General may issue warrant in admiration of a person is engaged in or rationally suspected of being engaged in activities prejudicial to national security; or
(b) the Attorney- General satisfied that foreign intelligence to be obtained is significant to the defence of Australia or to the conduct of Australia’s international affairs. At the same time, law enforcement warrants must be issued for investigation serious offences. Serious offences include but are not limited conducts involving an act of murder, terrorism, narcotics offences and Kidnapping. Also the TIA Act provides offences that are punishable by imprisonment for period of life or for life or maximum period of at least seven years such as loss of life or serious injury, serious property damage, corruption, tax, serious fraud, money laundering and child pornography.