Raiche, Holly --- "Barrett Amendments' passed" [1995] PrivLawPRpr 110; (1995) 2(9) Privacy Law & Policy Reporter 172

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'Barrett Amendments' passed

Telecommunications (Interception) Amendment Act 1994

The Telecommunications (Interception) Amendment Bill passed through the Senate as 'non-controversial' legislation and was passed into law on the final day of the Spring session of Parliament. The genesis of the Act was an invitation by the Security Committee of Cabinet in 1993 to review the 'long-term cost-effectiveness of telecommunications'. The resulting Barrett Report (see 1 PLPR 165, 185), released in March 1994, made a number of recommendations, some of which were reflected in the Bill. The rest of this article will deal only with those recommendations which were dealt with in some way by the Bill (see also 2 PLPR 55).

Barrett recommended that the definition of 'class 2 offences' in the then current legislation be amended to include more serious offences involving corruption or organised crime. The Bill did just that, adding a new s 5D which redefines a class 2 offence as one which involves, in addition to the previous defined crimes, bribery or corruption by an officer of the Commonwealth, a state or territory, or offences punishable by imprisonment for at least seven years and involving a range of offences, including tax evasion, currency violations, extortion and other offences defined in other criminal legislation.

Barrett recommended establishing measures which could evaluate both how information gained form interception is used. The Act's response is the creation of, under amendments to s 81, a 'special register' to record warrants issues for interception, where no criminal proceedings were instituted or likely to be instituted within three months of the date of issues as a result of information gained form that interception.

The AFP Commissioner is required to deliver the Special Register to the Minister every three months.

Another recommendation was the creation of a right of action against a person who unlawfully intercepts or publishes a telephone communication for the person whose communication is unlawfully intercepted. Amendments to s 107 do that. A person whose communications has been unlawfully intercepted (or communicated unlawfully) may apply to the Federal Court, and the Court may award damages or grant an injunction.

The difficulty with this new cause of action is that it does not deal with how a person will know a communications involving them has been unlawfully intercepted.

The Barrett recommendation was that, where the register of warrants show that innocent persons' telecommunications have been intercepted, those people should be informed by the relevant law enforcement agency 90 days after the warrant has expired. This recommendation met with strong resistance from law enforcement agencies, and was not adopted by the Government.

The value of this new cause of action is therefore limited to those instances where individuals somehow discover their telecommunications have been unlawfully intercepted - most likely by private individuals or organisations.

Another important recommendation which was not accepted by the Government was that the inspection and reporting function of the Ombudsman's Office under the Act be transferred to the Privacy Commissioner. The Government dismissed the suggestion, and simply asserted that the current arrangements are working well and do not need to be changed.

A recommendation which was adopted, though it still may be unworkable in practice, is the new s 63(2) which prohibits communication or use of information relating to warrants. The difficulty identified by Barrett was that a person could use provisions under the FOI Act to confirm the existence of a warrant, since the refusal of access to documents must be accompanied by a statement of reasons.

The amendments make s 63 a 'secrecy provision' for the purposes of the FOI Act, which means that FOI requests relating to warrants can be refused disclosure on the grounds that the secrecy provisions of the Act apply. The effect of this amendment may, however, be that the giving of that reason will tend to confirm the existence of a warrant anyway.

One of the major amendments to the Act arose not from the Barrett Report but as a direct consequence of the 'COT' cases - the casualties of Telecom. The telecommunications regulator Austel wrote a report of the COT cases which, inter alia, recommended that the Act tighten the circumstances in which telecommunications carriers (Telstra, Optus and Vodaphone) employees can intercept telecommunications communications.

Section 7 of the Act tightens restrictions on carrier employee interception of telecommunications in two ways. First, it requires that when a person intercepts communications, the interception must be 'reasonably necessary'. Further, the section provides that what is 'reasonably necessary' should be determined in accordance with Regulations.

Comment

A major concern with the passage of these amendments was that, without first sighting the Regulations, it would be impossible to know if the Act and regulations combined adequately confined carrier employee behaviour when intercepting telecommunications.

The obvious difficulty with sighting Regulations before the amendments are passed is that regulations can not be promulgated unless there is existing legislation which supports their establishment. In a last minute compromise, the Government circulated to all parties draft Regulations which, after consultation with interested parties, it says it will be promulgated.

The regulations will refer to guidelines on voice monitoring and recording, developed by carriers and approved by the Telecommunications Industry Ombudsman, as a test of whether carrier employee behaviour was 'reasonably necessary'.

Other Barrett recommendations would have given Austel's Law Enforcement Advisory Committee (LEAC) a larger role in relation to the Act. Since those recommendations, Austel has established a Privacy Advisory Committee (PAC). Given the very real threat to privacy posed by telecommunications interception, it would be more appropriate to give Austel's PAC a lead role in oversight of the newly amended Act.

Holly Raiche, Telecommunications Policy Adviser, Australian Democrats.