Amendments to the Telecommunications (Interception) Act 1979 came into effect on Tuesday, 13 June, with surprisingly little fuss.
The new laws, passed in March, are partly necessary to bring legislation up-to-date with technological developments. Broadly following the old phone-tap laws, they give government agencies with warrants access to ‘stored communications’ email, SMS and voicemail without the target’s knowledge, through the carrier or ISP.
More insidiously, lawyers and civil liberties groups say, the legislation also provides for the interception of communications of a person known to be communicating with a person of interest that is, a third party not necessarily suspected of any crime. This is a first in Australian law. John North, President of the Law Council of Australia says:
Our major concern is that for the first time in Australia’s history, a government will be allowed to eavesdrop on innocent people. To date, our surveillance laws have only permitted such activity when the government reasonably suspects someone of being involved in a serious criminal offence. The big change here is a government can apply for a warrant to intercept an innocent third party communication if they believe, as a last step, that it will enable them to find the identity of a person who has committed a crime that carries seven or more years’ imprisonment as a penalty.
The legislation opens up the possibility that lawyers’ communications will be intercepted and recorded, and undermines legal professional privilege. Similarly, expectations of confidentiality in relationships between doctors and their patients, or priests and parishioners can potentially be compromised under the legislation. Individuals’ right to privacy recognised but not ratified under Australian law is compromised.
In Parliament, Attorney-General Philip Ruddock dealt perfunctorily with the third-party provisions. In his Second Reading Speech, he said:
This amendment will assist interception agencies to counter measures adopted by persons of interest to evade telecommunications interception, such as adopting multiple telecommunications services. The ability, as a last resort, to intercept the communications of an associate of a person of interest will ensure that the utility of interception is not undermined by evasive techniques adopted by suspects.
However troubling the possible implications of such an extension of surveillance powers may be, the interception of third-party communications has previously been approved in limited circumstances by three judges of the Federal Court. In a 1996 case, Flanagan v Commissioner of Police, the applicant alleged the phone-tap warrant exceeded what the law permitted when her phone was tapped in the course of an investigation into her husband’s criminal activities. The court saw no problem with this. Kirk McKenzie, a lawyer, President of the Labor Party’s North Sydney branch and a vocal critic of the Howard Government’s anti-terrorism laws, says he sees no defects in the judges’ logic. However, he points out that the Australian Federal Police (AFP) did not embrace the decision as a green light to tap innocent third-party phones. ‘The Federal Police thought that the logic was defective,’ McKenzie says. ‘It was a matter of policy. They apparently didn’t do it.’
Third-party interception warrants are available for investigations of any offences punishable by a maximum period of seven years (or more). The issuing authority an eligible judge or any member of the Administrative Appeals Tribunal (AAT) must be satisfied that there are reasonable grounds for suspecting that a person of interest is communicating on the third party’s service, and information obtained would be likely to assist in that specific investigation.
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Not exactly stringent, but the new laws impose further provisos. The investigating authority must have exhausted all other avenues of investigation as long as those other avenues don’t compromise the investigation. The issuing authority must then also consider how much the warrant would interfere with the third person’s privacy, the gravity of the offences under investigation and the utility of any information likely to be obtained.
Stored-communications warrants have a lower threshold: authorities may obtain such warrants relating to investigations of offences punishable by a maximum period of imprisonment of three years. Restrictions on the sharing of information between agencies has a lower threshold still: information can be passed on in connection with the investigation of an offence punishable by a maximum period of only one year’s imprisonment.
Almost no one disputes the necessity of law enforcement agencies having regulated surveillance powers. Their use in crime investigations, particularly those involving narcotics offences, is demonstrably effective with an average 62 per cent success or arrest rate for warrants issued to various police forces, in the last reporting year. (The same document, the Telecommunications Interception Annual [TIA] Report for the year ending 30 June 2005, revealed that the AFP had only a 23 per cent success rate.)
But over the last decade, the persistent creep of police powers including telecommunications interception warrants into other branches of the Executive has become a worrying trend. Beyond the police services and State crime commissions, the Australian Taxation Office, Customs and the Department of Immigration and Multicultural Affairs are now authorised to deploy search warrants and other traditional police powers.
The Civil Liberties Council (CCL) of NSW, also opposed to the third-party provisions, has voiced concerns about the increase in the number of warrants being issued since AAT members were empowered to issue them in the late-1990s. David Bernie, Vice President of the CCL, says ‘we are concerned that the safeguards are breaking down over the last few years, that warrants are being issued as a matter of course.’
The CCL says that, because AAT members are not judges (they must be registered lawyers with at least five years’ experience), who are appointed on contract by the Government and have no sworn obligation to uphold the rights of individuals, they may be susceptible to simply rubber-stamping warrant applications.
The AAT denies this. ‘ There is no correlation between variations in the number of telecommunications interception warrants issued and AAT members being nominated to issue warrants,’ a spokesperson for the AAT says.
There was a significant increase in the number issued up until the 2004-5 TIA report, but the spokesperson says it was ‘due in part to the number of telecommunications services available to consumers and the number of targets using multiple services in an attempt to evade detection.’
During 2004-5, there was an overall decrease of 4.5 per cent in the number of warrants issued, which might raise questions about the real levels of terrorist activity in Australia, or at least of the usefulness of warrants to the police in investigating such activity.
Implicit (and often explicit) in any recent escalation of surveillance laws is the spectre of terrorism, which has regularly been wielded to justify Federal Government incursions onto ground previously guarded by citizens’ rights. But of the 2883 warrants issued nationally in the 2004-5 reporting year, the overwhelming majority were used in investigations of drug trafficking. Only 60 up from 2 the previous year were issued to the AFP in relation to terrorism investigations. Senator Natasha Stott Des
poja queried this, pointing out in the Senate that terrorism was as significant an issue in 2003-4 as it was in 2004-5:
During the recent inquiries into the anti-terrorism legislation and the telecommunications interception law, terrorism was listed as the main reason that it is considered necessary in this country to have such an invasive warrant regime. But, as we can see from the report, terrorism ranks hardly at all with the Federal and State law enforcement agencies in terms of their warrant requests. Of the 60 terrorism warrants issued to the AFP, not one resulted in evidence being given in the prosecution of an offence.
You don’t have to look at the report to see that the new warrant regime goes beyond terrorism, when offences punishable by as little as three years’ imprisonment are eligible.
‘This is not a law aimed just at terrorism,’ John North says. ‘It is inconceivable that this law has passed without adequate consultation and without any major uproar from members of the public.’
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