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Accessing Telecommunications Data for National Security and Law Enforcement Purposes

Published online by Cambridge University Press:  24 January 2025

Sharon Rodrick
Sharon Rodrick*
Affiliation:
Faculty of Law, Monash University
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Extract

Technological developments, particularly the advent of the Internet and the mobile phone, have spawned a vast increase in the volume, type and availability of telecommunications information. Mobile phones are now capable of sending and receiving SMS text messages and emails, accessing and downloading material from the Internet, taking photographs, streaming video and audio content and providing GPS navigation. National security and law enforcement agencies frequently wish to access telecommunications information for national security and law enforcement purposes. The desired information may be ‘telecommunications content’ — that is, the actual substance of a communication — or ‘telecommunications data’ — meaning information about a communication but not the substance of it.

Type
Research Article
Information
Federal Law Review , Volume 37 , Issue 3 , September 2009 , pp. 375 - 415
Copyright
Copyright © 2009 The Australian National University

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Footnotes

My sincere thanks go to Dr David Lindsay for his critical comments on an earlier draft of this article, and also to the anonymous referee.

References

1 New South Wales Council for Civil Liberties, Submission to the Senate Standing Committee on Legal and Constitutional Affairs Re Inquiry into the Telecommunications (Interception and Access) Amendment Bill 2007, 11 July 2007.

2 Niloufer, Selvadurai, Peter, Gillies and Md, Rizwanul Islam, ‘Maintaining an Effective Legislative Framework for Telecommunication Interception in Australia’ (2009) 33 Criminal Law Journal 34, 44Google Scholar.

3 Simon, Bronitt and James, Stellios, ‘Telecommunications Interception in Australia: Recent Trends and Regulatory Prospects’ (2005) 29 Telecommunications Policy 875, 887Google Scholar.

4 Telecommunications (Interception and Access) Act 1979 (Cth) ch 2.

5 This phrase has been judicially considered in the context of telephone tapping in a number of cases. See, eg, Miller v Miller (1978) 141 CLR 269; R v Curran and Torney [1983] 2 VR 133; R v Oliver (1984) 57 ALR 543; Edelsten v Investigating Committee of New South Wales (1986) 7 NSWLR 222.

6 Telecommunications (Interception and Access) Act 1979 (Cth) s 7.

7 Telecommunications (Interception and Access) Act 1979 (Cth) pts 2–2, 2–5.

8 Telecommunications (Interception and Access) Act 1979 (Cth) ss 9, 9A. Provision is made for warrants to be issued by the Director-General of Security in emergencies: s 10.

9 Telecommunications (Interception and Access) Act 1979 (Cth) s 6D. Eligible judges can be drawn from the Federal Court of Australia, the Family Court of Australia or the Federal Magistrates Court.

10 Telecommunications (Interception and Access) Act 1979 (Cth) ss 46, 46A. The Deputy President, full time and certain part time senior members, and members of the AAT can be nominated by the Minister to issue warrants: Telecommunications (Interception and Access) Act 1979 (Cth) s 6DA. To be eligible for nomination, part-time senior members and members of the AAT must have been enrolled as a legal practitioner of the High Court, the Federal Court or a State or Territory Supreme Court for no less than five years.

11 Telecommunications (Interception and Access) Act 1979 (Cth) ch 3.

12 Telecommunications (Interception and Access) Act 1979 (Cth) s 5.

13 See Tonia, Starey, ‘Getting the Message: A Comparative Analysis of Laws Regulating Law Enforcement Agencies’ Access to Stored Communications in Australia and the United States’ (2005) 10 Media and Arts Law Review 23, 24–26Google Scholar. It appears that Instant Messaging systems fall outside the stored communications regime: Selvadurai, Gillies and Islam, above n 2, 42. See also fn 90.

14 Explanatory Memorandum, Telecommunications (Interception) Amendment Bill 2006 (Cth) 4. Access to communications that are stored on a person's mobile phone or computer can be procured pursuant to other lawful access arrangements, such as a general search warrant.

15 Telecommunications (Interception and Access) Act 1979 (Cth) s 108.

16 Telecommunications (Interception and Access) Act 1979 (Cth) pts 3–2 , 3–3.

17 Telecommunications (Interception and Access) Act 1979 (Cth) s 109. Section 109 expands the authority of an interception warrant to cover stored communications provided the warrant would have authorised interception of the communication if it were still passing over a telecommunications system.

18 Telecommunications (Interception and Access) Act 1979 (Cth) s 5 (definition of ‘issuing authority’). The Minister can nominate the Deputy President and certain full or part time senior members, and members of the AAT to issue warrants: Telecommunications (Interception and Access) Act 1979 (Cth) s 6DB.

19 Telecommunications (Interception and Access) Act 1979 (Cth) ss 46(2)(a),(d), 46A(2)(a),(d), 116(2)(a),(d).

20 Telecommunications (Interception and Access) Act 1979 (Cth) ch 4. The boundary between the substance of a communication and information about a communication is not easily defined. This issue is addressed at length below.

21 The national security and law enforcement exceptions were contained in ss 282 and 283 of the Telecommunications Act 1997 (Cth).

22 Anthony, Blunn, Report of the Review of the Regulation of Access to Communications (2005) 6Google Scholar.

23 Ibid 10 (Recommendation (i)). See also, Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Telecommunications (Interception and Access) Amendment Bill 2007 [Provisions] (2007) [1.3].

24 In a similar vein, s 294 of the Telecommunications Act preserves the exceptions in ch 4 of the Interception Act.

25 For their part, telecommunications service providers are required to develop procedures to ensure that the communications that are carried over their systems are capable of being intercepted and accessed, thus enabling them to comply with requests for access from national security and law enforcement agencies. These matters are addressed in ch 5 of the Telecommunications (Interception and Access) Act 1979 (Cth) but are not considered in this article.

26 See, eg, Senate Standing Committee on Constitutional and Legal Affairs, Interim Report on the Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 [No 2] and Related Bills (2002); Ben, Golder and George, Williams, ‘Balancing National Security and Human Rights: Assessing the Legal Response of Common Law Nations to the Threat of Terrorism’ (2006) 8 Journal of Comparative Policy Analysis 43Google Scholar. Of course there will be differences of opinion amongst these proponents as to how an appropriate balance should be struck.

27 Lucia, Zedner, ‘Securing Liberty in the Face of Terror: Reflections from Criminal Justice’ (2005) 32 Journal of Law and Society 507, 508Google Scholar.

28 Ibid 532.

29 Ibid 511.

30 Philip, Thomas, ‘Emergency and Anti-Terrorist Powers 9/11: USA and UK’ (2003) 26 Fordham International Law Journal 1193, 1208Google Scholar.

31 Zedner, above n 27, 532.

32 Simon, Bronitt and James, Stellios, ‘Regulating Telecommunications Interception & Access: A Seachange in Surveillance Laws’ in Katina, Michael and M G, Michael (eds) Social Implications of Information Security Measures on Citizens and Business (2006) 142Google Scholar.

33 Simon, Bronitt, ‘Electronic Surveillance, Human Rights and Criminal Justice’ (1997) 3(2) Australian Journal of Human Rights 183, 185Google Scholar.

34 Thomas, above n 30, 1207–8.

35 277 US 438 (1928) ('Olmstead’). See also: Goldman v United States, 316 US 129 (1942); On Lee v United States, 343 US 747 (1952).

36 389 US 347 (1967).

37 Ibid (Stewart J).

38 Ibid 352 (Stewart J).

39 The perception of the Fourth Amendment as a species of privacy protection did not begin with the Katz case: Ken, Gormley, ‘One Hundred Years of Privacy’ (1992) Wisconsin Law Review 1335Google Scholar. Rather, it has its roots in the case of Boyd v United States, 116 US 616 (1886) and the seminal article by Warren and Brandeis, in which privacy was famously described as ‘the right to be let alone': Samuel, Warren and Louis, Brandeis, ‘The Right to Privacy’ (1890) 4 Harvard Law Review 193Google Scholar. Brandeis, who was a Harvard law professor at the time the article was published, was subsequently appointed to the United States Supreme Court. He sat on the Olmstead case, but dissented. However his dissenting judgment ‘laid the groundwork for the constitutionalization of his notion of privacy': Ken, Gormley, ‘One Hundred Years of Privacy’ (1992) Wisconsin Law Review 1335, 1357Google Scholar.

40 Katz v United States, 389 US 347, 364-374 (1967).

41 Ibid 361.

42 The Supreme Court of Canada has also adopted the notion of a reasonable expectation of privacy in interpreting s 8 of the Canadian Charter of Rights and Freedoms, which states that ‘[e]veryone has the right to be secure against unreasonable search or seizure': Hunter (Director of Investigation and Research, Combines Investigation Branch) v Southam Inc [1984] 2 SCR 145.

43 See, eg, the Human Rights (Sexual Conduct) Act 1994 (Cth).

44 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; Grosse v Purvis [2003] QDC 151; Doe v ABC [2007] VCC 281. But compare Giller v Procopets (2008) 40 Fam LR 378, which may have halted its progress.

45 Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report 108 (2008) 88 (Recommendation 74–1).

46 Before 1960, telecommunications interception was an executive act subject to prime ministerial directions which governed the exercise of executive power: Commonwealth, Parliamentary Debates, House of Representatives, 5 May 1960, 1423–4 (Sir Garfield Barwick, Acting Minister for External Affairs and Attorney-General); Thomas Wong, Regulation of Interception of Communications in Selected Jurisdictions (2005) 4.1.

47 For example, the Telephonic Communications (Interception) Act 1960 (Cth) permitted interceptions to be carried out, with a warrant, for national security purposes, but not for general law enforcement purposes. Subsequently, the Telecommunications (Interception) Act 1979 (Cth) permitted interception as a means of investigating crime, but initially only in relation to serious narcotic offences.

48 Commonwealth, Parliamentary Debates, House of Representatives, 5 May 1960, 1423–4. See also Edelsten v Investigating Committee of New South Wales (1986) 7 NSWLR 222, 229; R v Edelsten (1990) 21 NSWLR 542, 549; O’Malley v Keelty, Australian Federal Police Commissioner (2004) FCA 1688, [2]; Bradley, Holland, ‘Overtaking Privacy in the Telecommunications Transit Lane’ (2004) 11 Privacy Law and Policy Reporter 165Google Scholar.

49 The renaming of the Telecommunications (Interception) Act 1979 (Cth) was effected by the Telecommunications (Interception) Amendment Act 2006 (Cth).

50 Starey, above n 13, 28. These issues are currently being canvassed in the United States in the context of determining the extent to which individuals have a legitimate expectation of privacy under the Fourth Amendment: Daniel Sovocool and Kristin Jamerdino, ‘Tracking a User's Location Via Cell Phone’ (2006) ipfrontline.com <http://www.ipfrontline.com/depts/article.asp?id=9633&deptid=5> at 1 February 2009.

51 Blunn, above n 22, [1.4.2].

52 For example, stored communications warrants can be issued in relation to less serious criminal offences than interception warrants.

53 See, eg, Commonwealth, Parliamentary Debates, Senate, 28 March 2006, 85 (Senator Stott Despoja); Simon, Bronitt and James, Stellios, ‘Regulating Telecommunications Interception and Access in the Twenty-First Century: Technological or Legal Revolution?’ (2006) 24 Prometheus 413, 419Google Scholar.

54 See, eg, Explanatory Memorandum, Telecommunications (Interception) Amendment Bill 2006 (Cth) 9; Commonwealth Security Legislation Review Committee, Parliament of Australia, Report of the Security Legislation Review Committee (2006) 182; Australian Government, Attorney-General's Department, Telecommunications (Interception and Access) Act 1979, Annual Report for the Year Ending 30 June 2008 (2008) [2.2].

55 Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Provisions of the Telecommunications (Interception) Amendment Bill 2006 (2006) [3.1]. A similar viewpoint was expressed in the Blunn Review: Blunn, above n 22, 5.

56 Barry, Steinhardt, ‘Liberty in the Age of Technology’ (2004) Global Agenda 154, 154Google Scholar.

57 Australian Government, Office of the Privacy Commissioner, Getting in on the Act: The Review of the Private Sector Provisions of the Privacy Act 1988 (2005) 49.

58 Ibid.

59 Part 13 is concerned only with the use and disclosure of information. It does not deal with other aspects of information handling, such as collection and storage: Australian Law Reform Commission, Review of Australian Privacy Law, Discussion Paper No 72 (2007) [63.144]. The handling of ‘personal information’ by telecommunications service providers is also subject to the Privacy Act 1988 (Cth) ('the Privacy Act’): Australian Law Reform Commission, Report No 108, above n 45, [71.1]. The interaction between the Privacy Act and Part 13 of the Telecommunications Act is unclear, and has been considered in a number of reviews: see, for example: Australian Government, Office of the Privacy Commissioner, Getting in on the Act, above n 57, 49–63; Commonwealth, Senate Legal and Constitutional References Committee, Parliament of Australia, The Real Big Brother: Inquiry into Privacy Act 1988 (2005) ch 4; Australian Law Reform Commission, Review of Australian Privacy Law Discussion Paper 72 (2007) ch 63; Australian Law Reform Commission, Report No 108, above n 45, ch 71. A discussion of the Privacy Act is beyond the scope of this paper.

60 Telecommunications Act 1997 (Cth) s 271.

61 A carrier is the holder of a carrier licence granted under div 3 of pt 3 of the Telecommunications Act. A carrier licence must be held before certain infrastructure can be used to carry communications by means of guided and/or unguided electromagnetic energy: Telecommunications Act 1997 (Cth) ss 7, 42, 56.

62 A carriage service provider is described as one who makes use of the infrastructure owned by a carrier to carry communications by means of guided and/or unguided electromagnetic energy: Australian Law Reform Commission, Report No 108, above n 45, [71.8]. Internet service providers are carriage service providers.

63 A telecommunications contractor is a person who performs services for or on behalf of a carrier or CSP, otherwise than in the capacity of an employee: Telecommunications Act 1997 (Cth) s 274.

64 A communication that ‘is being’ carried includes a communication that has been collected or received by a carrier or CSP for carriage by it, but which has not been delivered by it: s 276(1)(a)(ii).

65 This prohibition only applies to a communication that is, or has been, carried by a carrier or CSP if the carriage was, is, or is proposed to be, delivered by means of guided and/or unguided electromagnetic energy: s 276(4).

66 Information or documents that do not come to a person's knowledge or possession in these circumstances are not within the purview of pt 13. However, if such information constitutes ‘personal information', it may nevertheless be regulated under the Privacy Act 1988 (Cth): Australian Law Reform Commission, Report No 108, above n 45, [71.19].

67 A number-database person includes number-database operators, number-database contractors and their employees. A number-database operator is a person in respect of whom a declaration is in force under s 472(1): Telecommunications Act 1997 (Cth) s 272(1). Since there are currently no number-database operators, as no declaration is in force, this prohibition will not be explained in detail. See Australian Law Reform Commission, Report No 108, above n 45, [71.9].

68 Telecommunications Act 1997 (Cth) ss 276(3), 277(3), 278(3). There have been no prosecutions for breaches of the prohibitions under Part 13 since the enactment of the Telecommunications Act 1997 (Cth): Australian Law Reform Commission, Report No 108, above n 45, [71.84].

69 The Australian Law Reform Commission has recommended that civil penalties be introduced in addition to the criminal penalties: Australian Law Reform Commission, Report No 108, above n 45, [71.83]–[71.98].

70 The definition of an enforcement agency is dealt with below. See also Telecommunications Act 1997 (Cth) s 280(2).

71 Telecommunications Act 1997 (Cth) s 280(1)(a).

72 Telecommunications Act 1997 (Cth) s 280(1)(b). The disclosures and uses permitted under ch 4 are ‘authorised’ for the purposes of s 280. For the sake of clarity, the Australian Law Reform Commission has recommended that a note cross-referencing to ch 4 be inserted after s 280: Australian Law Reform Commission, Report No 108, above n 45, Recommendation 72–6.

73 Telecommunications Act 1997 (Cth) pt 13 div 5. The reporting differs from that under the Telecommunications (Interception and Access) Act 1979 (Cth), which is to Parliament.

74 Telecommunications Act 1997 (Cth) s 309.

75 Australian Communications and Media Authority, Annual Report 2005–06 (2006) Appendix 12.

76 Australian Communications and Media Authority, Annual Report 2006–07 (2007) Appendix 12.

77 Australian Communications and Media Authority, Annual Report 2007–08 (2008) Appendix 12. This figure includes disclosures made under the new ch 4. The ACMA Annual Report for the 2008/09 year does not contain statistics relating to the number of disclosures made by telecommunications service providers under the Interception Act for the enforcement of the criminal law or a law imposing a pecuniary penalty, or for the protection of public revenue. Presumably, this is because ACMA is only required to include in its Annual Report statistics relating to information or documents that were disclosed under Division 3 of Part 13 of the Telecommunications Act: Australian Communications and Media Authority Act 2005 (Cth) s 57(2)(f).

78 Australian Communications and Media Authority, Annual Report 2006–07, above n 76. These statistics do not include disclosures made to ASIO.

79 Australian Communications and Media Authority, Annual Report 2007–08, above n 77. These statistics do not include disclosures made to ASIO.

80 The Chapter describes itself as setting out circumstances where pt 13 does not prohibit a disclosure or use of information or a document: s 171(1), (2).

81 Explanatory Memorandum, Telecommunications (Interception and Access) Bill 2007 8. These regimes have been briefly described in the Introduction.

82 Australian Privacy Foundation, Submission to the Senate Standing Committee on Legal and Constitutional Affairs Re Inquiry into the Telecommunications (Interception and Access) Amendment Bill 2007, July 2007. A number of submissions to the Australian Law Reform Commission reference into privacy also argued that the phrase should be defined in the Act: Australian Law Reform Commission, Report No 108, above n 45, [73.30].

83 Evidence to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Canberra, 16 July 2007, 22 (Catherine Smith) cited in Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Telecommunications (Interception and Access) Amendment Bill 2007 [Provisions] (2007) [3.17].

84 Australian Law Reform Commission, Report No 108, above n 45, [73.33].

85 Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Telecommunications (Interception and Access) Amendment Bill 2007 [Provisions]: Minority Report by the Australian Democrats (2007) [1.18].

86 Evidence to Senate Standing Committee on Legal and Constitutional Affairs, above n 83 [3.17].

87 Australian Privacy Foundation, above n 82.

88 Acts Interpretation Act 1901 (Cth) s 15AB(2)(e).

89 Explanatory Memorandum, Telecommunications (Interception and Access) Bill 2007 (Cth) 6.

90 This distinction is becoming increasingly blurred as a result of ‘IP telephony', which ‘enables facsimile messages, video and other forms of data traditionally transmitted via the PSTN [('Public Switched Telephone Network’)] to be transmitted via the internet': Australian Law Reform Commission, Report No 108, above n 45, [9.79]. Voice over the Internet Protocol services (VoIP), which enable verbal conversations to be conducted in real time over the Internet, is a subset of IP telephony. The Australian Law Reform Commission notes that:

VoIP services usually will be classified as carriage services for the purposes of the Telecommunications Act 1997 (Cth). This means that VoIP service providers generally will be ‘carriage service providers’ that are required to observe the provisions in pt 13 of the Telecommunications Act that protect the confidentiality of telecommunications information: Australian Law Reform Commission, Report No 108, above n 45, [9.81].

However, VoIP services can be isolated from the traditional PSTN, thereby allowing users to make and receive calls solely over the Internet. Examples given by the ALRC include instant messaging products such as Yahoo Messenger and MSN Messenger: Australian Law Reform Commission, Report No 108, above n 45, [71.101]. If a VoIP service does not connect with the PSTN at all, the service provider may not be regulated by the Telecommunications Act, although it might be regulated by the Privacy Act: Australian Law Reform Commission, Report No 108, above n 45, [9.81], [71.101].

91 Explanatory Memorandum, Telecommunications (Interception and Access) Bill 2007 (Cth) 6.

92 Ibid 8.

93 Ibid 6.

94 Ibid 8.

95 Australian Government, Attorney-General's Department, Telecommunications (Interception and Access) Act 1979, Annual Report for the Year Ending 30 June 2007 (2007) [3.13].

96 Blunn, above n 22, 1.1.25.

97 Electronic Frontiers Australia Inc, Submission to the Senate Standing Committee on Legal and Constitutional Affairs Re Inquiry into the Telecommunications (Interception and Access) Amendment Bill 2007, 10 July 2007 [3.2].

98 Explanatory Memorandum, Telecommunications (Interception and Access) Bill 2007 (Cth) 10, 13.

99 Electronic Frontiers Australia Inc, above n 97.

100 Access to the body section of an email would require a stored communications warrant.

101 Wikipedia, E-mail <http://en.wikipedia.org/wiki/E-mail> at 10 December 2008.

102 Explanatory Memorandum, Telecommunications (Interception and Access) Bill 2007 (Cth), 8. The same view is taken by the Attorney-General's Department: Australian Government, Attorney-General's Department, Answers to Questions on Notice, Senate Standing Committee on Legal and Constitutional Affairs Re Inquiry into the Telecommunications (Interception and Access) Amendment Bill 2007 Attorney- General's Department, 24 July 2007, Item 10, [11].

103 Electronic Frontiers Australia Inc, above n 97, [3.3].

104 Ibid.

105 Australian Government, Attorney-General's Department, Answers to Questions on Notice, above n 102, [12].

106 Electronic Frontiers Australia Inc, Submission to the Senate Standing Committee on Legal and Constitutional Affairs Re Inquiry into the Telecommunications (Interception and Access) Amendment Bill 2007, 26 July 2007, 2. EFA took the view that the phrase ‘MUST NOT be generated’ referred to obsolete syntax, not field names.

107 IP addresses are 32 bit numbers expressed in four octets. Lindsay explains that

[t]he IP address has two main parts: the network prefix (or network address), which identifies the network a computer is attached to; and the host ID (or host address), which identifies the logical location of the host computer on the network: David Lindsay, International Domain Name Law: ICANN and the UDRP (2007) 5.

108 Ibid 6.

109 Ibid 4.

110 Marshall Brain, How Domain Name Servers Work (2000) HowStuffWorks.com <http://www.howstuffworks.com/dns.htm> at 2 February 2009.

111 Ibid. See also Webopedia.com Domain Name <http://www.webopedia.com/TERM/D/domain_name.html> at 2 February 2009.

112 Boutell.com, WWW FAQs: What is a URL? (2003) <http://www.boutell.com/newfaq/definitions/url.html> at 1 February 2009. The most common protocol is the hypertext transfer protocol (‘http’) which is the protocol used to transfer web pages.

113 The protocol identifier and the domain name are separated by a colon and two forward slashes.

114 If not captured as ‘telecommunications data', access to information regarding Internet sessions would be permitted only under a stored communications warrant.

115 Evidence to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Canberra, 16 July 2007, 31 (Catherine Smith) cited in, Senate Standing Committee on Legal and Constitutional Affairs, Telecommunications (Interception and Access) Amendment Bill 2007 [Provisions] (2007) [3.18].

116 Australian Government, Attorney-General's Department, Answers to Questions on Notice, above n 102, [18].

117 Evidence to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Canberra, 16 July 2007, 42 (Lionel Wayne Markey).

118 Electronic Frontiers Australia Inc, above n 97, [3.4].

119 Ibid.

120 Ibid.

121 Australian Privacy Foundation, above n 82.

122 Australian Law Reform Commission, Report No 108, above n 45, [73.35]. The ALRC Report noted that the Attorney-General's Department maintains that it already ‘provides guidance to agencies and carriers regarding these issues, both generally and on a case-by-case basis': [73.32].

123 Rob, Nicholls and Michelle, Rowland, ‘Regulating the Use of Telecommunications Location Data by Australian Law Enforcement Agencies’ (2008) 32 Criminal Law Journal 343, 349Google Scholar.

124 Ibid.

125 Ibid.

126 Telecommunications (Interception and Access) Act 1979 (Cth) s 5.

127 Law Council of Australia, Submission to the Senate Standing Committee on Legal and Constitutional Affairs Re Inquiry into the Telecommunications (Interception and Access) Amendment Bill 2007, July 2007, 13.

128 Australian Government, Attorney-General's Department, Answers to Questions on Notice, above n 102, [10].

129 Telecommunications (Interception and Access) Amendment Regulations 2008 (No 1) (Cth).

130 This agency is underpinned by an Inter-Governmental Agreement signed by all Australian police ministers to establish and operate CrimTrac. The Intergovernment Agreement is reproduced in Appendix Three of the first annual report of CrimTrac: CrimTrac Agency Annual Report 2000-01.

131 CrimTrac, About Us (2008) <http://www.crimtrac.gov.au/about_us/index.html> at 2 February 2009.

132 Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Telecommunications (Interception and Access) Amendment Bill 2007 [Provisions] (2007) [3.6]. There is also a concern that CrimTrac's inclusion in the list would enable it to access stored communications: [3.6].

133 Australian Privacy Foundation, above n 82, 5.

134 Expunging CrimTrac from the definition does not necessarily mean that it could never be privy to telecommunications data. This would depend on whether such data could be deposited in its databases by other agencies making a permissible use of the secondary use provisions, which are discussed below.

135 The Dissenting Report issued by the Australian Democrats also recommended that CrimTrac be removed from the definition: Australian Democrats, above n 85, [1.13].

136 Electronic Frontiers Australia Inc, above n 97, [5.2.2(b)].

137 See, eg, Australian Privacy Foundation, above n 82, 5.

138 Telecommunications (Interception and Access) Act 1979 (Cth) s 174(1).

139 Telecommunications (Interception and Access) Act 1979 (Cth) s 177(1), (2).

140 A relevant staff member of an enforcement agency is the head or deputy head of the agency, or any employee, member of staff or officer of the agency: Telecommunications (Interception and Access) Act 1979 (Cth) s 5.

141 Telecommunications (Interception and Access) Act 1979 (Cth) s 174(2), 177(3).

142 Australian Privacy Foundation, above n 82, 4.

143 Australian Law Reform Commission, Discussion Paper No 72, above n 59, [63.50]. The observation was made in respect of the voluntary disclosure provisions as they then appeared in the Telecommunications Act.

144 This is particularly true of ASIO, whose functions are listed in very general terms. For example, one of its functions is ‘to obtain, correlate and evaluate intelligence relevant to security': Australian Security Intelligence Organisation 1979 (Cth) s 17(1)(a).

145 Australian Democrats, above n 85, [1.39].

146 Blunn, above n 22, [1.7.6].

147 Australian Law Reform Commission, Report No 108, above n 45, [73.78]–[73.79].

148 Telecommunications (Interception and Access) Act 1979 (Cth) s 175(2).

149 Telecommunications (Interception and Access) Act 1979 (Cth) s 175(3).

150 Australian Security Intelligence Organisation Act 1979 (Cth) s 17.

151 Telecommunications (Interception and Access) Act 1979 (Cth) ss 178(3), 179(3). Note that in relation to the enforcement of a law imposing a pecuniary penalty or protecting public revenue, it is only ss 276 and 277 of the Telecommunications Act 1997 (Cth) that are expressed not to prevent a disclosure, not s 278: Telecommunications (Interception and Access) Act 1979 (Cth) s 179(1).

152 Telecommunications (Interception and Access) Act 1979 (Cth) ss 5 (definition of ‘authorised officer’), 5AB. The definition is designed to reflect the differing management structures of enforcement agencies: Explanatory Memorandum, Telecommunications (Interception and Access) Amendment Bill 2007 (Cth) 3.

153 Queensland Council for Civil Liberties, Submission to the Senate Standing Committee on Legal and Constitutional Affairs Re Inquiry into the Telecommunications (Interception and Access) Amendment Bill 2007, 10 July 2007, 2.

154 New South Wales Council for Civil Liberties, above n 1, 2.

155 The extent to which details generated by Web browsing constitute telecommunications data was considered in an earlier section of this article.

156 Electronic Frontiers Australia Inc, above n 97, [3.2], [5.4].

157 Explanatory Memorandum, Telecommunications (Interception and Access) Bill 2007 (Cth) 10.

158 Evidence to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Canberra, 16 July 2007, 13 (Irene Graham).

159 Ibid.

160 Telecommunications (Interception and Access) Act 1979 (Cth) s 176(1).

161 They must be officers or employees who hold or are acting in a position that is equivalent to, or higher than, an SES (Senior Executive Service) Band 2 position in the Department: Telecommunications (Interception and Access) Act 1979 (Cth) s 176(2). These persons are the Organisation's senior management and leadership: Australian Law Reform Commission, Report No 108, above n 45, [73.16].

162 Telecommunications (Interception and Access) Act 1979 (Cth) s 176(4).

163 Telecommunications (Interception and Access) Act 1979 (Cth) s 176(5).

164 Telecommunications (Interception and Access) Act 1979 (Cth) s 176(6).

165 Telecommunications (Interception and Access) Act 1979 (Cth) s 176(3).

166 Inspector-General of Intelligence and Security, Submission to the Senate Standing Committee on Legal and Constitutional Affairs Re Inquiry into the Telecommunications (Interception and Access) Amendment Bill 2007, 11 July 2007, [10].

167 Inspector-General of Intelligence and Security Act 1986 (Cth) s 4. The Inspector-General also reviews the Australian Secret Intelligence Service, the Defence Intelligence Organisation, the Defence Imagery and Geospatial Organisation, the Defence Signals Directorate and the Office of National Assessments.

168 Inspector-General of Intelligence and Security Act 1986 (Cth) s 9A.

169 The provenance of these procedural requirements is explained below.

170 Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Telecommunications (Interception and Access) Amendment Bill 2007 [Provisions] (2007) [3.79]. The Senate Committee took the view (on advice from the Attorney-General's Department) that IGIS already has jurisdiction to oversee ASIO's use of its power to obtain prospective telecommunications data under s 8(1) of its establishing Act and that accordingly, legislative amendment was not necessary to enable this to occur: [3.67].

171 Telecommunications (Interception and Access) Act 1979 (Cth) s 180(2).

172 Telecommunications (Interception and Access) Act 1979 (Cth) s 5.

173 As is the case with ASIO, the authorising person can also authorise the disclosure of specified historical information or documents, thereby avoiding the need for a separate application to be made for access to historical data: Telecommunications (Interception and Access) Act 1979 (Cth) s 180(3).

174 Telecommunications (Interception and Access) Act 1979 (Cth) s 180(6), (7).

175 Telecommunications (Interception and Access) Act 1979 (Cth) s 180(4).

176 Telecommunications (Interception and Access) Act 1979 (Cth) s 180(5).

177 See, eg, Office of the Privacy Commissioner, Submission to the Senate Standing Committee on Legal and Constitutional Affairs Re Inquiry into the Telecommunications (Interception and Access) Amendment Bill 2007, July 2007, [3.2].

178 Australian Government, Attorney-General's Department, Answers to Questions on Notice, above n 102, [4].

179 Explanatory Memorandum, Telecommunications (Interception and Access) Bill 2007 (Cth) 13.

180 The New South Wales Council for Civil Liberties described it as ‘lip service’ that ‘could use some teeth': New South Wales Council for Civil Liberties, above n 1, 2.

181 The discussion in this section proceeds on the assumption that location information is ‘telecommunications data'. This issue has been explored earlier in this article.

182 The location of a phone can be determined in a number of ways, based on the measurements of the signal. These include the signal's angle of approach to the cell towers, how long it takes the signal to travel to multiple towers and the strength of the signal when it reaches the towers: Tracy Wilson, How GPS Phones Work (2009) HowStuffWorks.com <http://electronics.howstuffworks.com/gps-phone.htm> at 2 February 2009. These various methods are explained in greater detail in: Australian Government, Australian Communications Authority, Location Location Location: The Future Use of Location Information to Enhance the Handling of Emergency Mobile Phone Calls (2004) 27–32. This report can be viewed at <http://www.acma.gov.au/webwr/consumer_info/location.pdf>.

183 Australian Communications Authority, Location Location Location, above n 182, 27.

184 Marcus Einfeld's mobile phone records suggested that he had lied under oath when he said that he was not in Sydney at the time the driving offence was committed and that his car was being driven by a friend. The records demonstrated that he was making calls from his mobile phone in the area where the car was caught speeding. He has since pleaded guilty to one count of perjury and one count of acting to pervert the course of justice: Janet Fife-Yeomans, ‘Former Judge Marcus Einfeld Admits Lie, Has Cancer', Daily Telegraph (Sydney), 31 October 2008; James Madden, ‘Guilty Marcus Einfeld Faces Jail as Prosecutors Push for Prison Sentence’ The Australian (Sydney), 1 November 2008.

185 An automatic electronic ‘goodbye’ from a phone belonging to one of the girls as it was turned off showed that the girls could be traced to a spot outside the home of Ian Huntley, who was ultimately convicted of their murders. Mobile phone records also helped to destroy an alibi given by Huntley's ex-girlfriend, who said that she was with him at the time of the murders: BBC, Soham trial: crucial phone evidence (2003) <http://news.bbc.co.uk/2/hi/uk_news/england/cambridgeshire/3246111.stm> at 13 December 2008.

186 Australian Government, Australian Communications Authority, Location, Location, Location, above n 182, 7.

187 These satellites are established and operated by the United States Department of Defence: ibid 32. The European Union is currently building a global navigation satellite system called the Galileo System as an alternative to the US Global Positioning System. The system is expected to be operational by 2013. Unlike the US system which is under military control, the Galileo system will be under civilian control: Thomas, D'Roza and George, Bilchev, ‘An Overview of Location-Based Services’ (2003) 21(1) BT Technology Journal 20Google Scholar.

188 Wilson, above n 182.

189 The handsets do not transmit any information to the satellites; thus the satellites are not cognisant of individual receivers or aware that a user's location is being calculated: Australian Government, Australian Communications Authority, Location Location Location, above n 182, 33.

190 Ibid 27. Note, however, that Waters has stated that there is ‘no evidence that this detailed location information (generated by mobile phones incorporating GPS technology) is routinely accessible to the telco providing the service': Nigel Waters, Government Surveillance in Australia (2006) 23 <http://home.iprimus.com.au/nigelwaters/Government%20Surveillance%20in%20Australia%20v6.pdf> at 2 February 2009.

191 Australian Government, Australian Communications Authority, Location Location Location, above n 182, 33; Assisted GPS (A-GPS) Powering the Real World Web (2006) GPS Technology Reviews <http://gpstekreviews.com/2006/12/01/assisted-gps-a-gps-powering-the-real-world-web/> at 2 February 2009.

192 Australian Government, Australian Government, Australian Communications Authority, Location Location Location, above n 182, 33.

193 Jimmy LaMance, Jani Janvinen and Javier DeSalas, Assisted GPS: A Low-Infrastructure Approach (2002) GPS World <http://www.gpsworld.com/gpsworld/article/articleDetail.jsp?id=12287> at 2 February 2009.

194 Senate Standing Committee on Legal and Constitutional Affairs, Minority Report by the Australian Democrats, above n 85, [1.24].

195 Evidence to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Canberra, 16 July 2007, 12 (Irene Graham).

196 Telecommunications (Interception and Access) Act 1979 (Cth) s 181.

197 The Act does not deal with third and subsequent disclosure or use.

198 Telecommunications (Interception and Access) Act 1979 (Cth) s 182(1). The penalty for breach is imprisonment for 2 years.

199 Telecommunications (Interception and Access) Act 1979 (Cth) s 182 (2)(a).

200 Telecommunications (Interception and Access) Act 1979 (Cth) s 182(2)(b)–(d), 182(3).

201 Explanatory Memorandum, Telecommunications (Interception and Access) Bill 2007 (Cth) 14.

202 Letter from Attorney-General The Hon Philip Ruddock to Mr Burgess, Chief Executive Officer, Police Federation of Australia, 07/2852. This letter is attached to: Police Federation of Australia, Submission to the Senate Standing Committee on Legal and Constitutional Affairs Re Inquiry into the Telecommunications (Interception and Access) Amendment Bill 2007, 9 July 2007. See also Australian Government, Attorney-General's Department, Answers to Questions on Notice, above n 102, [14].

203 Australian Government, Attorney-General's Department, Answers to Questions on Notice, above n 102, [14].

204 Electronic Frontiers Australia Inc, above n 97, [5.6].

205 Law Council of Australia, above n 127, 9.

206 Electronic Frontiers Australia Inc, above n 97, [5.6].

207 Australian Security and Intelligence Organisation Act 1979 (Cth) ss 18, 19.

208 Telecommunications (Interception and Access) Act 1979 (Cth) s 6R. The position is currently filled by the First Assistant Secretary, National Security Law and Policy Division in the Australian Government Attorney-General's Department: Telecommunications (Interception and Access) (Communications Access Coordinator) Specification 2009 (Cth).

209 Telecommunications (Interception and Access) Act 1979 (Cth) s 183.

210 They include the identity of the eligible person making the authorisation and proof of their eligibility, the relevant provision of the Act under which authorisation is sought, details of the information or documents to be disclosed, the date on which the authorisation was made etc.

211 If notifications or revocations of authorisations are in electronic form, it is sufficient if they state a unique identifier of the Organisation or agency.

212 It appears that some oversight will be exercised by the IGIS, but only at the behest of their own initiative.

213 But note that warrants issued to ASIO are issued by the Federal Attorney-General and, in some cases, by the Director-General of Security, not by members of the judiciary or AAT.

214 Nicholls and Rowland, above n 123, 350.

215 Only nine Federal Court judges and 12 Family Court judges have made themselves available, compared with 34 Federal Magistrates and 37 AAT members: Australian Government, Attorney-General's Department, Telecommunications (Interception and Access) Act 1979, Annual Report 2008, above n 54, Table 42.

216 (1995) 184 CLR 348.

217 The judge must consent to the conferral of the non-judicial function and the non-judicial function must not be incompatible with the judge's judicial functions.

218 During the 2007/08 year, 90.72% of telecommunications interception warrants were issued by AAT members, 5.85% by Family Court Judges, 3.14% by Federal Magistrates and 0.22% by Federal Court Judges: Australian Government, Attorney-General's Department, Telecommunications (Interception and Access) Act 1979, Annual Report 2008, above n 54, [4.71].

219 During the 2007/08 year, 3254 applications were made for interception warrants. 3246 were granted and only eight were refused or withdrawn. In the same year, all 117 applications for stored communications warrants were granted: ibid Table 1, Table 47.

220 Bronitt and Stellios, in Michael and Michael (eds), above n 32, 146. For further observations about the warrant system see Bronitt and Stellios, ‘Telecommunications Interception in Australia', above n 3, 882.

221 See also Crime and Misconduct Act 2001(Qld).

222 Police Powers and Responsibilities Act 2000 (Qld) s 740.

223 Police Powers and Responsibilities Act 2000 (Qld) s 742.

224 Police Powers and Responsibilities Act 2000 (Qld) ss 742(2)(e), 743.

225 Senate Standing Committee on Legal and Constitutional Affairs, Minority Report by the Australian Democrats, above n 85, [1.32].

226 Telecommunications (Interception and Access) Act 1979 (Cth) s 185.

227 Telecommunications (Interception and Access) Act 1979 (Cth) s 186(1). The report must break down the authorisations into the various categories: the number of authorisations for access to existing information or documents for the enforcement of the criminal law, for the enforcement of a law imposing a pecuniary penalty or for the protection of the public revenue and, for criminal law-enforcement agencies, the number of authorisations for access to prospective information or documents.

228 ASIO is subject to certain reporting requirements under s 94 of the Australian Security Intelligence Organisation Act 1979 but they do not relate to authorisations under ch 4 of the Interception Act.

229 Telecommunications (Interception and Access) Act 1979 (Cth) s 186(2), (3).

230 Telecommunications (Interception and Access) Act 1979 (Cth) s 186(4).

231 This phrase is coined by Bronitt and Stellios ‘Telecommunications Interception in Australia’ above n 3, 886.

232 Telecommunications (Interception and Access) Act 1979 (Cth) ss 79, 150.

233 See also Australian Law Reform Commission, Report No 108, above n 45, [73.98]–[73.103].

234 See Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Provisions of the Telecommunications (Interception) Amendment Bill 2006 (2006) [3.74]–[3.81] for a recommendation to this effect in relation to the stored communications regime.

235 As explained, the Minister, in turn, reports to Parliament: Telecommunications (Interception and Access) Act 1979 (Cth) s 186(2).

236 Telecommunications (Interception and Access) Act 1979 (Cth) s 186(1)(d). It should be noted that telecommunications service providers are obliged to keep records of authorisations: Telecommunications Act 1997 (Cth) pt 13 div 5.

237 The Communications Access Co-ordinator is given a role in scoping the form of authorisations, notifications of authorisations and revocation of authorisations (see s 183) but this is not an inspection role.

238 Telecommunications (Interception and Access) Act 1979 (Cth) ss 83–92A. These record keeping and record destruction obligations are imposed on agencies by ss 79–81.

239 Telecommunications (Interception and Access) Act 1979 (Cth) s 84(1A).

240 Telecommunications (Interception and Access) Act 1979 (Cth) s 85.

241 Telecommunications (Interception and Access) Act 1979 (Cth) ss 152–8. These record keeping and record destruction obligations are imposed on agencies by ss 150, 151. They are less onerous than the record keeping requirements imposed in respect of interceptions.

242 This is not true in all cases. Inspection of the South Australian Police is undertaken by the Police Complaints Authority (South Australia), not by the State Ombudsman, while inspections of the Victoria Police and the Office of Police Integrity are undertaken by the Special Investigations Monitor (Victoria): Australian Government, Attorney-General's Department, Telecommunications (Interception and Access) Act 1979, Annual Report 2008, above n 54.

243 In the period from 1 November 2007 to 30 June 2008, only 1,135 disclosures of prospective information were made to criminal law-enforcement agencies, compared with 289,745 disclosures of existing information for the enforcement of the criminal law and 88,144 disclosures of existing information for the enforcement of a law imposing a pecuniary penalty or the protection of the public revenue: Australian Government, Australian Communications and Media Authority, Annual Report 2007–08, above n 77, Appendix 12, Disclosures of Information.

244 The Senate Committee recommended ‘that the Attorney-General's Department arrange for an independent review of the operation of the Telecommunications (Interception and Access) Act 1979 within five years': Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Telecommunications (Interception and Access) Amendment Bill 2007 [Provisions] (2007) [3.80].

245 The ALRC recommended that the Telecommunications Act and the Interception Act be reviewed to consider whether they continue to be effective in light of changes in the structure of communication industries and changing community perceptions and expectations about communication technologies. In particular, it called for a consideration of whether the Interception Act should provide for a PIM to oversee interception and access of communications before interception or access takes place, although in making this recommendation, the ALRC was not only concerned with the Chapter 4 regime: Australian Law Reform Commission, Report No 108, above n 45, [71.61]–[71.71], Recommendation 71–2.