Telecommunications surveillance

Recommendation 14–3 The Commonwealth Government should consider consolidating telecommunications surveillance laws with the new Commonwealth surveillance legislation.

14.43 The ALRC recommends that, if the Commonwealth enacts surveillance legislation, consideration be given to integrating surveillance device laws with the related restrictions on telecommunications surveillance under the Telecommunications (Interception and Access) Act 1979 (Cth) (the TIA Act).

14.44 The existing surveillance device laws do not regulate or address the entire range of activities that might be thought of as ‘surveillance’. In particular, the surveillance device laws do not regulate surveillance of telecommunications systems. Australian law recognises a distinction between, on the one hand, surveillance carried out using devices such as cameras or listening devices and, on the other hand, surveillance carried out through the interception of communications. The use of the latter type of surveillance is primarily regulated under the TIA Act. Collection and surveillance of communications data (‘metadata’) is also regulated by the TIA Act.

14.45 Although the distinction between the two types of surveillance may become less clear as communication technologies continue to develop, the High Court has established that the TIA Act ‘covers the field’ of communications surveillance.[42] Thus, while a tape recorder placed next to the speaker of a telephone handset to record a private telephone conversation would engage a surveillance device law, unauthorised interception of that private telephone conversation would engage the TIA Act.

14.46 The distinction between interception and surveillance is likely to become increasingly artificial as the convergence of computer systems and telecommunications systems increases. This may result in some surveillance activities being over-regulated, while other surveillance activities fall outside the scope of either regulatory regime. There may therefore be merit in integrating a federal surveillance device law with federal law regulating surveillance of telecommunications systems. Such integration may provide increased certainty to individuals, and may have the additional benefit of reducing the complexity of these laws for businesses and organisations that must deal with them.

14.47 However, in considering any integration of these laws, it would be important to ensure that privacy protections of individuals were not weakened, that compliance burdens on businesses and organisations were not increased, and that appropriate oversight and monitoring mechanisms were put in place applying to all forms of surveillance. Differences between different types of surveillance would also need to be considered. For example, while surveillance with a listening device may involve an intention on the part of the person carrying out the surveillance to record the conversation of a specific individual, telecommunications surveillance may involve the collection or processing of data about many individuals simultaneously. On the other hand, special defences or exceptions may be required for surveillance-like activities—such as the determination of individuals’ locations—that may be technologically necessary for the proper operation of telecommunications networks.