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Published online by Cambridge University Press: 24 January 2025
Australia's telecommunications sector is in the process of remarkable change. Over the past decade, it has evolved from a market dominated by a government owned entity (Telecom) with a statutory monopoly, to a privatised and fully competitive market comprising “carriers”, “carriage service providers” and “content service providers”, each providing an ever-expanding range of services through a variety of delivery platforms. The aim of this paper is to review the rapidly evolving legal and administrative framework for the protection of privacy within Australia's telecommunications sector. The paper will survey the regulation of telecommunications interception by individuals and law enforcement bodies, disclosure of the contents of (tele)communications by telecommunications service providers, encryption policy, computer “hacking” offences, the Telecommunications Industry Ombudsman scheme and the new “co-regulatory” approach to standards development through the Australian Communications Industry Forum (ACIF). The paper will also consider whether Australia's privacy regime is an adequate response to the challenges posed by the changing telecommunications environment.
1 These terms, derived from the Telecommunications Act 1997 (Cth), are discussed below.
2 See Parliament of the Commonwealth of Australia, Senate Economics References Committee, Connecting You Now …: Telecommunications Towards the Year 2000 (1995) at 31 (hereafter Connecting You Now); Department of Communications and the Arts, Australia's Open Telecommunications Market (1997) www.dea.gov.au/policy/auction/open.html.
3 As set out in the Trade Practices Act 1974 (Cth} Part XIC {introduced by the Trade Practices Amendment (Telecommunications) Act 1997 (Cth)). This access regime operates with respect to “declared carriage services and specified ancillary services”. Part XIB of the Trade Practices Act contains telecommunications-specific anti-competitive conduct provisions.
4 Telecommunications Act 1997 (Cth), Parts 6, 21.
5 Connecting You Now above n 2 at 68-70; Commonwealth of Australia, Networking Australia's Future: The Final Report of the Broadband Services Expert Group (1994) at 66-67 (hereafter Networking Australia's Future).
6 The Commonwealth Attorney General's Department, Privacy Protection in the Private Sector (Discussion Paper, 1996) at 1-2, 5.
7 Brough, J, “Another Key Election Promise Bites the Dust” Sydney Morning Herald 31 March 1997 at 11Google Scholar; R Magnusson, “The Folly of Forgoing a Vital Protection” Age 19 May 1997. Furthermore, the Howard government indicated its intention to contract out the computer processing functions of government departments to the private sector (“Computer Plans Lift Fears Over Privacy” Sydney Morning Herald 26 April 1996). This policy is now being implemented. At the time of writing, the Privacy Act 1988 (Cth) is to be amended so that independent contractors will be bound by the Information Privacy Principles: see Privacy Amendment Bill 1998 (Cth); N Waters, “Privacy and Outsourcing—the Privacy Amendment Bill 1998” (1998) 4 Privacy Law & Policy Reporter 181.
8 This point is often overlooked by privacy advocates. The Constitution of the Telecommunications Industry Ombudsman (TIO) provides that the Ombudsman has jurisdiction to investigate and resolve complaints regarding “interference with the privacy of an individual in terms of non-compliance with the Information Privacy Principles contained in s 14 of the Privacy Act 1988 and any industry specific privacy standards which may apply from time to time”: TIO Constitution (see TIO, 1997-98 Annual Report para 4.1).
9 The Commonwealth Attorney General's Department, above n 6, at 3-4, 12-14. Since March 1997, the Privacy Commissioner has, at the Prime Minister's direction, begun to negotiate a voluntary scheme for the protection of personal information held in the private sector. A joint discussion paper has been released outlining the principles which would form the basis of the scheme (Human Rights and Equal Opportunity Commission, Privacy Commissioner, Information Privacy in Australia: A National Scheme for Fair Information Practices in the Privacy Sector (Consultation Paper, 1997). The Commissioner is currently negotiating the mechanisms for ensuring compliance and enforcement of the private sector principles.
10 A third carrier, AUSSAT was incorporated in 1981 to operate Australia's domestic satellite system. It began commercial operations in 1985 when the first satellite was launched.
11 Telecommunications Act 1991 (Cth), ss 48-51 (now repealed).
12 Telecommunications Act 1991 (Cth), s 46.
13 Telecommunications Act 1991 (Cth), s 53.
14 Transmission facilities are known as “network units”, of which there are four types: line links, satellite-based facilities, base stations for mobile services and certain fixed radiocommunications links: Telecommunications Act 1997 (Cth), Part 2.
15 Telco Act, s 15. The “content” of content service providers is separately regulated under the Broadcasting Services Act 1992 (Cth), although the Commonwealth is moving towards a self-regulatory framework analogous to that which exists for carriage service providers (CSPs) under the Telecommunications Act: see Department of Communications and the Arts, Principles for a Regulatory Framework for On-Line Services in the Broadcasting Services Act 1992 (1997) www.dea.gov.au/policy/framework.html.
16 Telco Act, ss 42, 101. For the Service Provider Rules, see s 98 and Schedule 2. For the conditions of a Carrier Licence, see Part 3 and Schedule 1.
17 Australia's Open Telecommunications Market, above n 2.
18 TIO, 1997-98 Annual Report at 11. This is a dramatic increase from the 16 service provider members who belonged to the TIO scheme as at 30 June 1997.
19 Telco Act, s 61 and Schedule 2, Part 2.
20 Aboven3.
21 Telco Act Schedule 2, Part 4.
22 Telco Act, ss 137, 149, 177 and, generally, Part 7. The Universal Service Regime provides all Australians with reasonable access to standard telephone services, payphones, and prescribed carriage services.
23 Telco Act, Part 8.
24 Telco Act, Part 9.
25 Telco Act, ss 245-256.
26 Analogue technology uses continuous wave signals to transmit a caller's voice, whereas digital technology reduces the user's signal (eg, a voice) to a series of discrete or acontinuous signals. Digital transmission is cheaper, faster and of higher quality.
27 Telco Act, s 361. An Integrated Services Digital Network (ISDN) channel is capable of carrying a variety of high speed telecommunications services including voice, facsimile, videotex, electronic mail and funds transfer. ISDN also has the potential for new applications. One feature of “basic access” to ISDN is the integration of voice and data (by time division multiplexing). ISDN thus permits a person to hold a telephone conversation while simultaneously sending or receiving data from a computer terminal over the same telephone line. See, further, Bureau of Transport and Communications Economics, Telecommunications in Australia (Report 87, 1995) at 134-135 (hereafter Telecommunications in Australia) G Held, Understanding Data Communications (4th ed 1994) at 383ff.
28 Department of Communications and the Arts, Overview of Australia's Open Telecommunications Market http://www.dcita.gov.au/text_welcome.html
29 Telco Act, s 66.
30 G Held, above n 27 at 82-84 and 229-230.
31 Telco Act, Part 15.
32 Telco Act, s 355. Calling line identification is data generated at the time a telephone call is made, which can be transmitted simultaneously with the call. This data includes: the called party's phone number, the calling party's phone number, the time of day and duration of the call: see AUSTEL, Telecommunications Privacy (Final report of Austel's Inquiry into the Privacy Implications of Telecommunications Services, 1992) (hereafter Telecommunications Privacy) at 65.
33 Australian Communications Authority Act 1997 (Cth), ss 10-13.
34 Telco Act, Part 5.
35 Telco Act, Part 7.
36 Telco Act, Part 21.
37 Telco Act, Part 22.
38 Australian Communications Authority Act 1997 (Cth), ss 6-7.
39 Telco Act, s 117, and, generally, Part 6.
40 Telco Act, Part 6, Division 5. See, further, Part4 below.
41 Australian Communications Authority Act 1997 (Cth), s 52.
42 Telecommunications in Australia, above n 27 at 1.
43 Productivity Commission, Telecommunications Economics and Policy Issues (1997) at 1.
44 Telecommunications in Australia, above n 27 at 7-8.
45 Networking Australia's Future, above n 5 at 15; Bureau of Transport and Communications Economics, Communications Futures (Final Report, 1995) at 21ff (hereafter Communications Futures).
46 Communications Futures, ibid at 116. Pay-TV services broadcast from satellites using microwave technology began in January 1995. By 2005 it is anticipated that perhaps 30% of households will be pay TV subscribers. As the rollout of hybrid optic fibre coaxial cable (HCF) continues in metropolitan centres, however, there will be a transition to cable-based services, cable TV overtaking wireless services perhaps by 2003: ibid at 124-125.
47 Ibid at 65, 117; Networking Australia's Future, above n 5 at 15.
48 The following overview draws heavily upon Communications Futures, above n 45 at 119ff.
49 Ibid at 120-121.
50 Ibid at 121.
51 T Reid, “Mobile Phones Leave Owners Exposed by Logging Every Move” Age 3 February 1997 at A7; Beale, B, “Hold the Phone, that Mobile Could Make Tracks into People's Privacy” Sydney Morning Herald 26 April 1997 at 9Google Scholar.
52 Communications Futures, above n 45 at 120.
53 Ibid at37-38, 126-127.
54 Ibid at 128.
55 Ibid at 134. The Health Communications Network (HCN), currently being rolled out, already links general practitioners, specialists, and hospitals in Victoria, and permits information exchange and automatic updating of electronic patient records: www.hcn.net.au. See, further, House of Representatives Standing Committee on Family and Community Affairs, Health on Line: A Report on Health Information Management and Telemedicine (1997).
56 Networking Australia's Future, above n 5 at 65.
57 G Hughes, Data Protection in Australia (1991) at 3; Gates, B, “Privacy Laws a Step Behind Technology” Age 19 September 1995 at 32Google Scholar.
58 Communications Futures, above n 45 at 112.
59 'Connor, K O, “National Privacy Laws Needed, Says O'Connor” (1994) 1 Privacy Law & Policy Reporter 61, 62Google Scholar.
60 Networking Australia's Future, above n 5 at 66. This concern has already arisen, for example,with respect to the privacy of calling line identification or calling number display (CND) information, when in the hands of those who are neither carriage nor content service providers, and who are not therefore bound by any industry code registered with the ACA.
61 See The Walsh Report www.efa.org.au/Issues/Crypto/Walsh/walsh.htm, paras 3.1.1-3.1.2, discussed below text at n 219ff.
62 For example, information privacy standards based upon the OECD Guidelines (Guidelines on the Protection of Privacy and Transborder Flows of Personal Data, OECD, 1980) or the European Privacy Directive (Directive on the Protection of Individuals with regard to the Processing of Personal Data and on the Free Movement of such Data, The Council, 1995, 95/46/EC). See www.epic.org/privacy/orwww.privacy.org/pi.
63 The PAC was disbanded on 2 June 1997, although its work is expected to assist the Australian Communications Industry Forum (ACIF), the peak industry self-regulating body, in developing industry standards: Australian Telecommunications Authority, Annual Report 1996-97 at 34.
64 Telecommunications Privacy, above n 32.
65 Austel Privacy Advisory Committee, Calling Number Display, (1996) (hereafter Calling Number Display).
66 Austel Privacy Advisory Committee, Telemarketing and the Protection of the Privacy of Individuals (1995) (hereafter Telemarketing).
67 Commonwealth of Australia, Telecommunications (Interception) Act 1979: Report for the year ending 30 June 1994 (1995) at 3.
68 Defined in Telecommunications (Interception) Act 1979 (Cth), ss 5(1), 5D. Class 1 offences include murder, kidnapping, and narcotics offences. Class 2 offences include those punishable by imprisonment for a period of 7 years where the conduct involves serious injury to person or property, trafficking in narcotics, serious fraud, serious loss of government revenue, and bribery and corruption by government officers. Certain “organised criminal offences”, and money laundering offences, are also defined as Class 2 offences.
69 For example, by supplying telephone interception equipment in the knowledge that it will be used unlawfully to intercept a telecommunications system: Duncan v The Queen (1991) 5 WAR249.
70 TI Act, ss 7(1), 105.
71 See Duncan v The Queen (1991) 5 WAR 249 at 262-263 and 267-268, a case in which involved the “enabling” offence ins 7(1)(c).
72 TI Act, s 5(1).
73 TI Act, s 6(1).
74 TI Act, s 5(1). Listening in on ham radio, or even police radio, for example, would not be an interception under s 7(1).
75 TI Act, ss 63, 105.
76 The exception relates to information intercepted under a warrant containing a defect or irregularity which is not “substantial”: TI Act, s 75. Unlawfully intercepted information may also be given in proceedings relating to offences committed under the Act itself (ss 7(1), 63) and in proceedings for remedial relief instituted by an aggrieved person who was a party to the intercepted communication (s 107A).
77 TI Act, ss 74, 77.
78 Aboven68.
79 That is, offences under ss 7(1), 63 of the TI Act itself, as well as offences under the Crimes Act 1914 (Cth), Part VIIB.
80 TIActs5B.
81 John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81 at 87 per Gleeson CJ, at 112-113 per Kirby P and at 116 per Priestley JA.
82 See Wood v Beves (1997) 92 A Crim R 209 at 221-222 per Cole JA, Studdert AJA concurring at 223; cf Handley JA at 213-215; see also DPP v Serratore (1995) 38 NSWLR 137 (information lawfully intercepted under the TI Act cannot be used in bail proceedings). However, the TI Act was amended in November 1997 to permit lawfully intercepted information to be used in bail applications for prescribed offences: TI Act, s 5B(l)-(m), inserted by the Telecommunications (Interception) and Listening Devices Amendment Act 1997 (Cth).
83 TI Act, s 107A.
84 TI Act, s 107C.
85 TI Act, s 107A. By “account of profits” is meant that the defendant may be required to pay to the aggrieved person a sum representing the total gross income derived as a result of the wrongful interception or communication.
86 (1995) 37 NSWLR 81.
87 Ibid at 84 per Gleeson CJ and at 101-102 per Kirby P; cf at 116-117 per Priestley JA. This is consistent with the general rule that in order to have standing to restrain a breach of a criminal statute, the applicant must have a special interest over and above that of the general public: Onus v Alcoa of Australia Ltd (1982) 149 CLR 27 at 35-37, 41-42, 44, 52-53 and 71-75.
88 TI Act, ss 7(2)(b), 7(2)(ab).
89 TI Act, s 7(2)(c). Section 30 specifically authorises the tracing or interception of such calls where this would assist in responding to the emergency. It is common practice for emergency service organisations to record calls made to “000”.
90 TI Act, s 7(4)-(8).
91 Note that ASIO officers acting in the lawful performance of their duties are authorised to intercept communications without a warrant in order to discover whether listening devices are being used at a particular place: s 7(2)(ac).
92 TI Act, s 9. This expression is defined in the Australian Security Intelligence Organisation Act 1979 (Cth), s 4. Under s 11A, warrants may also be issued for interceptions for the purposes of obtaining foreign intelligence on matters relating to defence and the conduct of the Commonwealth's international affairs.
93 TI Acts 10.
94 TI Act,s 15.
95 Interception for law enforcement purposes usually requires a warrant. One exception is where interception is carried out to identify a person suspected of contravening Part VIIB of the Crimes Act 1914 (Cth), which relates to improper use of and damage of telecommunications services: TI Act, s 7(2)(iii).
96 TI Act, ss 6D, 39-40. The High Court has held that the power conferred by the TI Act upon individual judges to issue warrants is an administrative and not a judicial power. The principle of separation of powers does not preclude judges fulfilling this role, as it is assumed by the judge with consent, and is not incompatible with the exercise of judicial power: Grollo v Palmer (1995) 184 CLR 348 at 360, 364-365 and 389. Similarly, the power to issue warrants under State listening devices Acts is an administrative power, although the judge who exercises the power is under a duty to act “judicially”: Love v Attorney General (NSW) (1990) 169 CLR 307 at 320-322; Coco v The Queen (1994) 179 CLR 427 at 444.
97 TI Act, s 6DA introduced by the Telecommunications (Interception) and Listening Devices Amendment Act 1997 (Cth), s 19.
98 TI Act, s 5(1).
99 TI Act, s 42. Where a warrant is issued on a telephone application, the supporting affidavit(s) must be supplied within one day and the warrant may be revoked by the judge if they are not received: TI Act, ss 50-52.
100 TI Act, ss 45-46. In Ousley v The Queen (High Court of Australia, 20 October 1997, unreported) a majority of the Court held that it was not necessary for a warrant authorising the use of a listening device to state on its face that the judge was satisfied of the matters set out in the Listening Devices Act 1969 (Vic) as preconditions to the issuing of the warrant. The same principle would apply to warrants issued under the TI Act: Grollo v Palmer (1995) 184 CLR 348,367 per Brennan CJ, Deane, Dawson & Toohey JJ.
101 TI Act, s 49(3).
102 TI Act, s 48.
103 TI Act, ss 47,60.
104 TI Act, ss 53-54.
105 TI Act, ss 32-33 and 47. Elsewhere the Act states more broadly that officers of an agency (not restricted to the AFP) may (and must) be authorised by the Chief Officer of the agency to exercise the authority conferred by warrants, although only duly authorised members of the AFP may enter premises to install interception equipment: TI Act, s 55. Interception, however, can only be carried out by AFP officers: TI Acts 47.
106 TI Act, ss 80-81.
107 TI Act, ss 81A-81D.
108 TI Act, ss 82-88.
109 TI Act, ss 84, 94, 97.
110 TI Act, ss 99-104.
111 TI Act, s 7(2)(a)-(aa) (emphasis added).
112 AUSTEL, The COT Cases: AUSTEL's Findings and Recommendations (1994) at 201-214.
113 TIO, Guidelines on Voice Monitoring or Recording of Telephone Services (1994).
114 Draft Regulations were proposed by the former Labour government in order to codify “reasonable” interception practices by carriers in the course of installation, connection and maintenance of lines or equipment. However, these Regulations were never introduced. They would have required the approval of the TIO in order to come into effect: interview with Mr John Pinnock, Telecommunications Industry Ombudsman, 10 October 1997.
115 Australian Federal Police Act 1979 (Cth), ss 12D, 12DA, 12F, 12G (hereafter AFP Act). Section 12DA was inserted by the Telecommunications (Interception) and Listening Devices Amendment Act 1997 (Cth).
116 AFP Act, s 12B. The definitions of Class 1 and 2 offences is similar to the definitions of Class 1 and 2 offences in the TI Act (above n 68), although it excludes customs and narcotics offences.
117 Customs Act 1901 (Cth), ss 219A, 219AA, 219AB.
118 For example, Listening Devices Act 1984 (NSW), ss S(l)(a), 6(1); Listening Devices Act 1969 (Vic), s 4(1); Invasion of Privacy Act 1971 (Qld), ss 43(1), 44(1).
119 For example, Listening Devices Act 1984 (NSW), ss 5(2), 6(2) (use of a listening device pursuant to warrant; use of a listening device to obtain information and publication of contents of private conversation in connection with an imminent threat of serious violence or substantial property damage or a serious narcotics offence; publication of contents of private conversation with express or implied consent of all principal parties); Listening Devices Act 1969 (Vic), s 4(3) (use of listening device by police officer duly authorised under warrant); see also Invasion of Privacy Act 1971 (Qld), ss 43(2), 44(2). The onus of establishing a defence rests with the party seeking to rely upon it, and must be made out on the balance of probabilities: Miller v TCN Channel Nine (1988) 36 A Crim Rep 92 at 97.
120 Listening Devices Act 1984 (NSW), ss 5(1)(b), 6(1); Listening Devices Act 1969 (Vic), s 4(1)(b) (offence for communicating or publishing conversation recorded or listened to by use of a listening device only); Invasion of Privacy Act 1971 (Qld), s 45(1).
121 For example, Listening Devices Act 1984 (NSW), s 5(3) (use of listening device pursuant to warrant; use of listening device with express or implied consent of principal parties; where publication of private conversation is not more than is reasonably necessary in connection with an imminent threat or serious violence to persons, or substantial property damage or a serious narcotics offence); Listening Devices Act 1969 (Vic), s 4(2) (publication of information obtained under warrant; publication of private conversation if reasonably necessary in the public interest or in the course of one's duty or for the protection of one's lawful interests); see also Invasion of Privacy Act 1971 (Qld), s 45(2).
122 TI Act, s 107A; see above n 83ff and text.
123 Shiel v Transmedia Productions Pty Ltd [1987] 1 Qd R 199 at 211.
124 In Shiel itself, the Full Court of the Queensland Supreme Court upheld a decision to refuse an interlocutory injunction against a breach of the Invasion of Privacy Act 1971 (Qld), ss 42- 46, noting that the lower court's decision was consistent with the usual rule that an injunction restraining the publication of allegedly defamatory material will only be granted in exceptional cases.
125 TI Act, ss 7(1), 63.
126 Miller v Miller (1978) 141 CLR 269 at 276-278.
127 In R v Edelsten (1990) 21 NSWLR 542, a majority of the New South Wales Court of Criminal Appeal held that the use of a radio scanner to intercept mobile phone conversations by intruding into the frequency used for the transmission was an interception.
128 See definition of “telecommunications system” above n 74.
129 Miller v TCN Channel Nine (1988) 36 A Crim R 92; Reichelt v Lewis (1986) 23 A Crim R 284.
130 R v Edelsten (1990) 21 NSWLR 542 at 548 approving Edelsten v Investigating Committee of New South Wales (1986) 7 NSWLR 222 at 229 per Lee J; John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81 at 97-98 per Kirby P; Kizon v Palmer (1997) 142 ALR 488 at 517; Green v R (1996) 135 ALR 181 at 190; cf The Queen v Migliorini (1981) 53 FLR 221 at 226.
131 R v Migliorini (1981) 53 FLR 221 at 222-223 and 225.
132 (1984) 57 ALR 543 at 548.
133 R v Curran and Tomey [1983] 2 VR 133 at 153.
134 Collier, A, “When Does Unauthorised Listening Become Interception?” (1994) 68 Law Institute Journal 58 at 59-60Google Scholar.
135 Ibid at 59.
136 Ibid.
137 TI Act, s 6(1).
138 As noted above, the recording of an ordinary aural conversation by one of the participants to that conversation is, except in Victoria, an offence, absent a warrant, the knowledge of the person being recorded or other relevant exception.
139 (1991) 5 WAR 249 at 252.
140 (1992) 58 SASR 382.
141 With whom Debelle J agreed.
142 Similarly, Green v R (1996) 135 ALR 181at 190 “[t]he intended protection is against a third party invading the privacy of that communication by an interception within the meaning of s 6(2)”.
143 Information intercepted in breach of the TI Act will very rarely be admitted into evidence (above n 76), whereas listening devices legislation in some States confers a discretion on the Court to admit the evidence in cases involving defined (serious) offences: Listening Devices Act 1984 (NSW), s 13(2)-(3); T v Medical Board of South Australia (1992) 58 SASR 382 at 397.
144 See Harvey v Baumgart (1963) 7 FLR 389 at 392.
145 The opposing argument is that it would be “strange that a caller could complain of a listener recording words that the caller intended the listener to hear”: The Queen v Migliorini (1981) 53 FLR 221 at 225 per Cosgrove J.
146 See TI Act, s 5 (a “record” means a record or copy, whether in writing or not); see also T v Medical Board of South Australia (1992) 58 SASR 382 at 398-399 per Matheson J. The reference to “recording, by any means” ins 6(1) and the definition of “record” would seem to exclude the legislation from being read down to mean record in the form in which the communication passed over the telecommunications system, that is, as sounds or data, rather than as words on paper; cf Harvey v Baumgart (1963) 7 FLR 389 at 393. Arguably, however, the use of an answering machine to record incoming communications would not be an interception as these services involve the knowledge of the party making the call. All digital answer phones which indicate recording by emitting audible beeps may also be regarded similarly: “Legal Answer to Call Recording” Australian 16 April 1996 at 49.
147 Listening Devices Act 1984 (NSW), s 5(3); Listening Devices Act 1969 (Vic), s 4(2).
148 “Premises” is widely defined to include any land, structure, building, aircraft, vehicle, vessel or place: TI Act, s 5(1).
149 TI Act, s 6(2). For the purposes of the s 6(2) exception, a “carrier” is either a “carrier” or a “carriage service provider”, as these terms are defined in the Telco Act.
150 (1978) 141 CLR 269.
151 Ibid at p 276 per Barwick CJ (“a person unlawfully on the premises to which a telephone service is connected may breach the Act by interception by means of the telephone extension within the premises”).
152 Ibid. The case also decided that since the TI Act was intended to cover the whole field of telecommunications interception, any State listening devices legislation prohibiting the admission into evidence of information acquired in this way was, to that extent, invalid.
153 Above n 149.
154 (1981) 53 FLR 221.
155 Ibid at 226.
156 Ibid.
157 [1983] 2 VR 133 at 152-154.
158 Similarly, R v McHardie and Danielson [1983] 2 NSWLR 733 at 750.
159 The s 6(2) exception refers to “apparatus or equipment” forming part of a telecommunications service provided by a carrier. The definition of “equipment” excludes a “line”: TI Act, s 5. In the simple example of the installation of a second telephone in the home, therefore, regardless of who installed the additional wiring, the lawfulness of the interception would depend upon the equipment; in this case, the handset.
160 Wood, F, “Your Telephone Calls: Recording and Monitoring” (1996) 3 Privacy Law & Policy Reporter 14 at 15Google Scholar.
161 Telecommunications in Australia, above n 27 at 11.
162 The definition of “carriage service provider” for the purposes of the s 6(2) exception would appear to be broad enough to encompass the manufacturer or supplier of a wide variety of customer premises equipment (mobile phones, facsimile machines, modems), not to mention the providers of such things as EFfPOS services: see Telco Act, ss 7, 87.
163 F Wood, above n 160; G Greenleaf, “An Emerging Law of Cyberspace?”, paper given at the Computers & the Law Conference, Melbourne, 17 June 1996.
164 Line maintenance by carriers themselves is separately regulated; above n 11lff and text.
165 See F Wood, above n 160 at 14-15.
167 A Collier, above n 134 at 63. This interest was, of course, met in the days when telephone handsets were leased and connected exclusively by Telecom.
168 (1995) 131 ALR 319.
168 Ibid at 330-331.
169 Coco v The Queen (1994) 179 CLR 427. Cf Emanuele v Dau (1995) 78 A Crim R 242, a case where the “bug” was planted in hotel rooms before they became occupied by the suspect. Cf also R v Scouller (1995) 76 A Crim R 487 at 491 (a “tap” on a person's home telephone by means of a telecommunications intercept connected to the line outside the boundaries of a suspect's property cannot be regarded as trespass).
170 R v McNamara (1994) 73 A Crim Rep 539.
171 In this case, however, the trial judge exercised his discretion to admit the video evidence, and the Court of Criminal Appeal held that no miscarriage of justice was caused by the admission of this unlawfully obtained information: ibid at 547-549.
172 See Carbone v National Crime Authority (1994) 52 FCR 516.
173 (1986) 23 A Crim R 284.
174 Ibid at 287 and 298-301. In view of this conclusion, the recording was held to be a breach of confidence and an injunction was granted together with an order for the delivery-up of the tapes.
175 The Telco Act also gives a statutory basis to the Telecommunications Industry Ombudsman (TIO) regime, and sets up the statutory framework within which the policy of “co-regulation” will function in the telecommunications sector, including the regulation of privacy issues. These issues are discussed below.
176 Telco Act, s 276 and the definition of “eligible persons” ins 271.
177 Section 276(1).
178 Section 276(1)(ii).
179 Above n 51. Such location information has already been used in one murder trial: “Mobile Phones Leave Owners Exposed by Logging Every Move” Age 3 February 1997 at A7.
180 Telco Act, ss 277-278.
181 Sections 280-281.
182 Section 282(1)-(2).
183 Section 284.
184 Section 286.
185 Section 187.
186 Sections 306 and 308.
187 Section 309.
188 Section 279.
189 Section 283. Here, the disclosure must be authorised in writing by the Director-General of Security.
190 Section 285.
191 Section 290.
192 Sections 296-303.
193 See Telecommunications Act 1991 (Cth), s 88.
194 Telco Act, s 282(1)-(2).
195 Section 282(3)-(5).
196 N Waters, “Telecommunications Interception—Extending the Reach or Maintaining the Status Quo?” (1997) 4 Privacy Law & Policy Reporter 110 at 111-112.
197 Telco Act, s 282(6). The ACA has given as examples of the information which may be provided when “reasonably necessary” or “upon certificate”: information from the customer information database, billing records, and assistance in tracing a call (but not so as to access the content of any communication: ACA, Telecommunications and Law Enforcement: www.aca.gov.au/telecom/carrier/law.htm.
198 Telecommunications Legislation Amendment Act 1997 (Cth) introducing, inter alia, a new Part 15 into the Telco Act.
199 Telco Act, ss 322-323.
200 Section 324.
201 Sections 325-327.
202 Section 332L(l).
203 Sections 328-331.
204 Section 332C.
205 Section 332B.
206 Section 313.
207 Sections 332E-332J. The costs of complying with the specific requirements of an agency (an “agency specific delivery capability”) are to be borne by the agency concerned: ibid, s 332L(2).
208 N Waters, above n 196 at 111.
209 On this interpretation, Part 15 would make little sense if it permitted the transmission of messages which could not be de-coded, provided the electronic signals themselves could be “intercepted”.
210 Commonwealth of Australia, Report of the Electronic Commerce Task Force to the Commonwealth Law Enforcement Board (1996) at 25.
211 See “Keep Password Handy When Using Pretty Good Privacy”, Age 23 March 1996 at C7. Developed by Phil Zimmerman, PGP was downloaded onto the internet in defiance of United States export restrictions, and is now freely available: www.efa.org.au/Issues/Crypto/crypto4.html. Zimmerman was indicted for breach of US export laws, although the charges were dropped in January 1996. Zimmerman formed a company which markets PGP-related products (the company has since merged with a larger group): see “Pretty Good Secrets Go On Sale” Australian, 21 May 1996 at 35; www.nai.com/default_pgp.asp.
212 See, further, OECD Secretariat, Report on Background and Issues of Cryptography Policy, (1997): www.oecd.org/dsti/sti/it/secur/prod/crypto.htm.
213 Report of the Electronic Commerce Task Force, above n 210 at 26.
214 “Post Service Hopes Digital Commerce Will Arrest Decline” Australian 9 May 1995 at 62; Commonwealth Attorney-General's Department, Security Objectives for the Information Superhighway (1995, P Ford, author) at 12.
215 For an international survey of cryptology policies, see Global Internet Liberty Campaign, Cryptography and Liberty: An International Survey of Encryption Policy (9 February 1998): www.gilc.org/crypto/crypto-survey.html
216 Press Release on the Clipper Chip, The White House, 16 April 1993:www.epic.org/crypto/clipper.
217 Press Release on the Adoption of the Clipper Chip, The White House, 4 February 1994:www.epic.org/crypto/clipper.
218 Certain products with cryptographic capabilities are classified as “munitions” and their export from the United States is prohibited, in the absence of an export licence, under Regulations made under the Arms Export Control Act 1949 (US). See further National Research Council, Cryptography's Role in Securing the Information Society (30 May 1996) Part 4.1.2: jya.com/nrcindex.htm. For Australia's encryption export controls, see G Walsh, Review of Policy Relating to Encryption Technologies (The Walsh Report): www.efa.org.au/Issues/Crypto/Walsh/walsh.htm para 5.2.2. See also www.efa.org.au/Issues/Crypto/crypto2.html.
219 Press Release of the Vice-President of the United States on Encryption, 1 October 1996; sourced from the Walsh Report: www.efa.org.au/Issues/Crypto/Walsh/walsh.htm, AnnexF.
220 Ibid.
221 See resources at: http://www.epid.ocg/crypto/key_escrow.
222 See National Research Council, Cryptography's Role in Securing the Information Society (30 May 1996) chs 5 and 8 (Recommendation 5.3); above n 218. There is a developing body of US caselaw on the First Amendment and encryption which cannot be discussed here.
223 The Walsh Report: www.efa.org.au/Issues/Crypto/Walsh/walsh.htm, paras 1.1.10, 1.1.20, 1.2.13 and 5.1.8.
224 Ibid paras 1.1.15, 1.2.1, 1.2.5 and 4.7.1. Standards Australia has published recommendations for the development of a Public Key Authentication Framework (Ref No. SAA MP75-1996).
225 Ibid para 1.2.53. The Minister for Communications, the Information Economy and the Arts has announced the creation of a new peak body to oversee the development of a national system for online authentication: Senator Richard Alston, “Key Step Forward for Safer Net Transactions”, 14 October 1997: www.dca.gov.au/mediarel/c12497.html.
226 The ad hoc Group was chaired by Mr Norman Reabum, Deputy Secretary of the Commonwealth Attorney-General's Department. The Guidelines are available at www.oecd.org/dsti/sti/it/secur.
227 Guidelines for Cryptography Policy, ibid, Principle 3.
228 Ibid, Principle 6.
229 “Privacy Groups Praise OECD Encryption Policy” Australian 1 April 1997 at 29.
230 P Ford, above n 214 at 11.
231 Relevantly, the Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997 (Cth), Schedule 1 re-defines the term “carrier” in the Crimes Act to mean a carrier or carriage service provider as defined in the Telco Act.
232 Crimes Act 1914 (Cth), s 85ZG.
233 Section 85ZD.
234 Section 85ZE.Courts have also developed the law of nuisance to provide a tortious remedy for telephone harassment: Khorasandjian v Bush [1993] 3 WLR 476; Mothenvell v Motherwell (1976) 73 CLR (3d) 62.
235 Section 76B. See, eg, Rook v Maynard (1993) 126 ALR 150. This offence protects, inter alia, against “hacking” into e-mail and personnel files stored on Commonwealth computers: “Hacker Jailed for Leaking Federal Files” Age 22 June 1995 at 6; “Hacker Fights to Get Back Federal PS Job” Australian 17 October 1995 at 23.
236 Crimes Act 1914 (Cth), s 76C. See, eg Gilmour v Director of Public Prosecutions (Cth) (1995) 125FLR 114.
237 Crimes Act 1914 (Cth), s 76D (emphasis added).
238 For example, “Hacker's Theft Victims Call for Security Upgrade” Weekend Australian 22-23 April 1995 at 6; “Hacker Threatens Stolen Credit Spree” Age 19 April 1995 at 3. For discussion of the capture of Kevin Mitnick (“the world's most wanted hacker”), see “Computer Pirate Faces 35-year Term” Sunday Age 19 February 1995 at 14; “The Twisting Trail of a Cyberthief” Age 5 March 1996 at C4.
239 Crimes Act 1900 (NSW), s 309; Summary Offences Act 1966 (Vic), s 9A; Criminal Code (Qld), s 408D; Summary Offences Act 1953 (SA), s 44; Criminal Code (WA), s 440A; Criminal Code (fas), ss 257A-257F and Police Offences Act 1935 (fas), ss 43A-43E; Criminal Code (NT), s 222 (unlawfully obtaining confidential information whether on computer or otherwise); Crimes Act 1900 (ACT), ss 135J-135L. The accepted view is that information is not property for the purposes of criminal law: Oxford v Moss (1978) 68 Crim App Rep 183 (student's unauthorised access of examination paper not theft); R v Stewart (1988) 50 DLR (4th) 1; Grant v Allen [1988] SLT 11; cf Triplex Safety Glass Co Ltd v Scorah (1937) 55 RPC 21 at 27; Cox v Riley (1986) 83 Crim App R 54 (erasure of computer program rendering computerised saw inoperable amounted to criminal damage); Re Turner (1984) 13 CCC (3d) 430 (unauthorised encrypting of computer tapes constituted interference with lawful use and enjoyment of property); R v Whiteley [1993] FSR 168.
240 See Hughes, G, Data Protection in Australia (1991) at 256-259CrossRefGoogle Scholar.
241 Telco Act, s 246.
242 Section 245.
243 Sections 246(6), 248-249.
244 Above nn 17-18 and text.
245 Telco Act, s 250.
246 Section 246(3). See also the TIO Constitution, TIO, 1997-98 Annual Report, at 53.
247 It is only a partial shifting in view of the fact that the overall approach to standards development and regulation is “co-regulatory”.
248 Political factors are also relevant to the regulatory model chosen for the TIO. It would have been difficult to bring private sector carriers such as Optus, Vodafone and now Telstra under the oversight of the Commonwealth Ombudsman: interview with Mr John Pinnock, Telecommunications Industry Ombudsman, 10 October 1997.
249 Less than 1% of initial “enquiries” progress to becoming “disputes”.
250 TIO Constitution, para 6.1, above n 246.
251 Ibid para 6.2.
252 Above n 8.
253 Interview with Mr John Pinnock, above n 248.
254 The Ombudsman states that “it is estimated that there are between 70 and 90 'traditional' service providers in the industry, and in excess of 500 Internet Service Providers [ISPs]”: J Pinnock, “Developments in Telecommunications and the Privacy Debate” (1997) 4 Privacy Law & Policy Reporter 108. The internet poses a variety of privacy issues, many of which are not yet understood: G Greenleaf, “Privacy—Lost in Cyberspace?”, paper delivered at Information Privacy Conference, IIR Conferences, Sydney 12-13 August 1996.
255 Privacy Act 1988 (Cth), s 27(1)(d),(h),(m).
256 K O'Connor, above n 59.
257 Ibid.
258 Above nn 64-67 and text.
259 The Telco Act includes, amongst its definitions of who are to be regarded as “sections of the telecommunications industry”: carriers, CSPs supplying standard telephone services, CSPs supplying public mobile telecommunications services and content service providers: Telco Act, s 110(2).
260 Telco Act, s 112(1).
261 This requirement applies where the code deals with matters of substantial relevance to the community: Telco Act, s 117(1)(d)(i).
262 Section 117(1).
263 Section 116.
264 Section 113(3)(f).
265 Section 117(1)0),
266 Section 121.
267 Section 118. Where such a Code would relate to privacy matters, the ACA is prevented from requesting a code compliance with which would require customer equipment or a telecommunications network to have particular design features or performance standards, unless the ACA is satisfied that the benefits of such a Code would outweigh the costs of compliance: s 118(4).
268 Telco Act, ss 123, 125.
269 Section 128. Before determining an industry standard, however, the ACA must consult with the ACCC and the TIO, the public generally and a body representing consumer interests: ss 132-133, 135. As with codes development, the Privacy Commissioner must be consulted where the standard deals with privacy issues: s 134. The ACA may vary and revoke industry standards: ss 130-131.
270 Section 114.
271 Above n 8. There is some expectation that one privacy-related industry code currently under negotiation, relating to customer personal information (the CPI Code), may replace the Information Privacy Principles in the TIO Constitution as a source of the TIO's jurisdiction in privacy complaint matters: discussion with Nigel Waters, member of the Privacy Code Working Committee, Australian Communications Industry Forum (ACIF), 19 March 1998.
272 At a broader level, the regulation of telecommunications is shared between the ACA and the ACCC (government regulators) and several industry groups (see Table 2).
273 The following draws on information available on the ACIF homepage: 203.27.21.60/aboutacif/about-us-page.htm.
274 Ibid, at 7 of 9.
276 Interview with Mr John Pinnock, above n 248.
277 Aboven9.
278 Conversation with Ms Rosie Rowe, Project Manager, Consumer Codes Reference Panel, ACIF, 21 May 1998.
279 Kevin O'Connor, above n 59.