The Senate Standing Committee on Legal and Constitutional Affairs has today tabled its inquiry into Australia's electronic surveillance laws, chaired by Australian Greens Senator Scott Ludlam.
The report was tabled as the Senate has begun debating mandatory data retention legislation, which will entrench some of the more serious flaws in Australia's surveillance regime.
"It is evident to many people what has gone wrong with our regime of state surveillance, but it is much harder to identify how to restore integrity to our system," Senator Ludlam said.
"That is what this report sets out to do: a comprehensive revision of what works, and what has failed to work, and a set of recommendations. Principally, we are seeking to bring bulk metadata collection into a streamlined warranted regime, and the introduction of a national Public Interest Monitor such as exists in Queensland and Victoria.
"Collection of sensitive private information should require a warrant, period. We accept that the existing regime is long overdue for reform, and have recommended a shift to a single attribute-based warrant as long as a national Public Interest Monitor is established.
"It is my sincere hope that the important work of this committee is not buried under the dust of the mandatory data retention debate. This legislation is long overdue for reform, and I commend these recommendations to the Government and Opposition,".
The inquiry into the operation of the Telecommunications (Interception and Access) Act 1979 has been underway for 15 months, and the committee heard evidence from law enforcement and intelligence agencies, legal experts, civil rights organisations and the telecommuncations industry.
The report is available online through the APH Website.
Summary of Chair's Recommendations:
Existing regime for authorising access to telecommunications data
1.63 The Chair recommends that the Telecommunication (Interception and Access) Act 1979 be amended to include an objects clause modelled on Article 17 of the International Convention on Civil and Political Rights and the privacy principles contained in the Privacy Act 1988.
1.64 The Chair recommends that the Telecommunication (Interception and Access) Act 1979 be comprehensively redrafted to enact a single attribute-based warrant regime applying to content and data that is 'information that allows a communication to occur'. Warrants under that regime should be limited to the investigation by law enforcement, anti-corruption or national security agencies of:
- serious criminal activity; or
- activity that may have serious and immediate implications for national security.
1.66 The Chair recommends that the Telecommunication (Interception and Access) Act 1979 should be amended to establish a Commonwealth Public Interest Monitor to have oversight of the warrant regime under the Act.
Mandatory data retention
1.166 The Chair recommends that the government not proceed with a mandatory data retention regime and that the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 be withdrawn.
1.182 If the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 is not withdrawn the Chair recommends that the Bill be amended to:
- include a definition of 'telecommunications data' in the primary legislation;
- identify in the definition of 'telecommunications data' the elements of the data set as either 'information that allows a communication to occur' or 'basic subscriber information';
- delete proposed subsections 176A(3) and 176A(4) which provide the Minister with the ability to declare an authority or agency to be an enforcement agency for the purposes of accessing metadata;
- amend the proportionality test set out in existing sections 177, 178 and 179 of the Telecommunications (Interception and Access) Act 1979. The Australian Privacy Commissioner, Law Council of Australia and the Australian Human Rights Commission are to be consulted in amending the proportionality test associated with accessing telecommunications data;
- include a requirement for data that is 'information that allows a communication to occur' to be accessed only via warrant;
- reduce the mandatory data retention period from two years to three months;
- include a requirement that all data be stored in Australia;
- include a requirement to destroy telecommunications data after the mandatory retention period or when it is no longer needed;
- include protections for sensitive classes of professionals including journalists and their sources, medical professionals, and lawyers;
- amend proposed section 186A to include a requirement that the following information also be kept by an agency:
- the type of metadata requested;
- the age of the metadata requested;
- the offence(s) which the request related to;
- the outcome following the request; and include a requirement in proposed section 187P that this information be reported in the Attorney-General's annual report to the Parliament;
- amend proposed section 186B to include a requirement that the Commonwealth Ombudsman examine the records of each agency which has access to metadata every six months;
- amend proposed section 187N (Review of operation of Part) to require both the Parliamentary Joint Committee on Intelligence and Security and the Independent National Security Legislation Monitor to review the data retention regime on a triennial basis; and
- introduce a mandatory data breach notification regime.
1.183 The Chair recommends that the government introduce a statutory right to privacy, similar to that which exists in the United Kingdom, rather than relying on international human rights instruments.