Interception and access

73.2 Laws relating to the interception of telecommunications were initially concerned with preserving the integrity of telecommunication systems.[2] In 1960, however, the Telephonic Communications (Interception) Act 1960 (Cth) was introduced to protect the privacy of individuals by making it an offence to intercept communications passing over telecommunication systems (with certain exceptions).[3] In 1979, this Act, and other legislation governing the interception of telecommunications, was repealed and replaced with the Telecommunications (Interception) Act 1979 (Cth).[4] Since then, there have been a number of inquiries into telecommunications interception and numerous changes to interception legislation.[5]

73.3 The Telecommunications (Interception) Amendment Act 2006 (Cth) amended the Telecommunications (Interception) Act to change the name of the Act to the Telecommunications (Interception and Access) Act 1979 (Cth). The 2006 amendments also implemented a number of the recommendations of the Report of the Review of the Regulation of Access to Communications, conducted by Mr Anthony Blunn (the Blunn Report).[6]

73.4 The Blunn Report concluded that there was inadequate regulation of access to stored communications, as well as insufficient protection of privacy during the access, storage and disposal processes of stored communications.[7] The Telecommunications (Interception) Amendment Act expanded the regulatory telecommunications interceptions scheme by prohibiting access to stored communications, subject to a number of exceptions. It also introduced a regime for the use, disclosure, retention and destruction of accessed stored communications.[8]

73.5 The 2006 amendments broadened the exceptions to prohibited interceptions by introducing ‘B-Party’ warrants. B-Party warrants are directed to innocent third parties (a ‘B-Party’) who are likely to communicate with individuals under investigation for serious offences.[9] These controversial amendments are discussed below.

73.6 The Blunn Report also concluded that the distribution of provisions between the Telecommunications Act and the Telecommunications (Interception) Act (as it was then known) dealing with access to telecommunications data for security and law enforcement purposes was ‘complicated, confusing and dysfunctional’.[10] The report recommended the introduction of comprehensive legislation dealing with access to all telecommunications and telecommunications data for law enforcement and security purposes.[11]

73.7 The Telecommunications (Interception and Access) Amendment Act 2007 (Cth) implemented this recommendation. The 2007 amendments removed provisions relating to the use and disclosure of information and documents for law enforcement and security purposes from Part 13 of the Telecommunications Act, and introduced a new Chapter 4 into the Telecommunications (Interception and Access) Act. Chapter 4 sets out a regime for particular officers of ASIO or an enforcement agency to authorise telecommunications service providers to disclose ‘telecommunications data’ without breaching the offence provisions under the Telecommunications Act.[12] These amendments are discussed below.

73.8 The ALRC’s current Inquiry is focused on the extent to which the Privacy Act and related laws provide an effective framework for the protection of privacy in Australia. As discussed in Chapter 1, communications interception generally is an issue that is outside the scope of this Inquiry. Federal legislation governing the interception of telecommunications, however, contains provisions about the use, disclosure and storage of information which also may be ‘personal information’. These provisions, and their interaction with the Privacy Act, are within the scope of the Inquiry and are discussed further below.

[2] Australian Law Reform Commission, Privacy, ALRC 22 (1983), [753].

[3]Telephonic Communications (Interception) Act 1960 (Cth).

[4] Australian Law Reform Commission, Privacy, ALRC 22 (1983), [754]–[755].

[5] See, eg, A Blunn, Report of the Review of the Regulation of Access to Communications (2005) Australian Government Attorney-General’s Department; D Stewart, Report of the Royal Commission of Inquiry into Alleged Telephone Interceptions (1986) Australian Government; Parliament of Australia—Joint Select Committee on Telecommunications Interception, Report (1986).

[6] A Blunn, Report of the Review of the Regulation of Access to Communications (2005) Australian Government Attorney-General’s Department. Mr Blunn is a former Secretary of the Attorney-General’s Department.

[7] Ibid, [1.8.1].

[8]Telecommunications (Interception and Access) Act 1979 (Cth) ch 3.

[9] See, eg, Ibid ss 9(1)(a), 46(1)(d). S Bronitt, J Stellios and K Leong, Submission PR 213, 27 February 2007. See also S Bronitt and J Stellios, ‘Regulating Telecommunications Interception and Access in the Twenty-first Century: Technological Evolution or Legal Revolution?’ (2006) 24 Prometheus 414.

[10] A Blunn, Report of the Review of the Regulation of Access to Communications (2005) Australian Government Attorney-General’s Department, 6.

[11] Ibid, rec i.

[12] These provisions are discussed in detail in Chs 71 and 72.