It would repeal the existing parts of three Acts to form a new one that covers the use of computer access and surveillance devices powers.
A review into Australia’s intelligence community has recommended comprehensive reform of electronic surveillance laws, one that would repeal existing powers and combine them to avoid duplication, contradictory definitions, and any further ad hoc amendments to the existing three Acts. Electronic surveillance powers enable agencies to use electronic or technical means, which would otherwise be unlawful, to covertly listen to a person’s conversations, access a person’s electronic data, observe certain aspects of a person’s behaviour, and track a person’s movements. Currently, these powers are contained within the Telecommunications (Interception and Access) Act 1979 (TIA Act), the Surveillance Devices Act 2004 (SD Act), and the Australian Security Intelligence Organisation Act 1979 (ASIO Act). Parts of the Telecommunications Act 1997 and the Criminal Code Act 1995 are also directly relevant when considering these powers. Each Act requires agencies to meet thresholds before accessing these powers and requires external authorities, such as judges, Administrative Appeals Tribunal (AAT) members, or the Attorney-General as is the case of ASIO, to approve the use of powers. In 2017-18, Commonwealth, state, and territory law enforcement agencies obtained 3,524 interception warrants,828 stored communications warrants,802 surveillance device warrants,23,947 prospective data authorisations, and 301,113 historic data authorisations. ASIO likewise obtained interception, surveillance device, and computer access warrants. “In short, we conclude that the legislative framework governing electronic surveillance in Australia is no longer fit for purpose,” the review said. “The SD Act was enacted 15 years ago; the ASIO Act and TIA Act are 40 years old; and the foundations of the surveillance framework date back to decisions made by Prime Minister Chifley in 1949.” It said that after 40 years of continued amendments, problems with the framework have accumulated. “The framework contains a range of highly intrusive powers that are functionally equivalent, but controls and regulates their use in a highly inconsistent fashion. It is based on outdated technological assumptions that cause challenges for agencies applying the framework to modern technologies,” the review said. There are more than 35 different warrants and authorisations for electronic surveillance activities. These warrants have different tests, thresholds, safeguards, and administrative requirements. Similarly, the review said, there are significant differences between the limits and controls that apply to agencies’ use of their electronic surveillance powers in respect of third parties who are not, themselves, under investigation. Additionally, the ASIO Act, SD Act, and TIA Act contain 10 different arrangements for “emergency authorisations” to exercise their electronic surveillance powers in various urgent circumstances. It also said ad hoc amendments often introduce as many problems as they solve and many of the core definitions in the Acts date back to the 1970s and 1980s and do not reflect the current telecommunications environment. The review labelled the TIA Act as a “case study of complexity”, saying the complexity was both unnecessary and harmful. The review considered the following fixes: Continuing to progress ad hoc amendments to deal with problems as they arise; repealing and rewriting the TIA Act alone; comprehensively reforming the entire electronic surveillance framework — repealing and rewriting the TIA Act, SD Act, and relevant parts of the ASIO Act; or developing a common legislative framework, which would be a broader consolidation of core legislation governing the National Intelligence Community (NIC). “We recommend that the SD Act and TIA Act, and relevant parts of the ASIO Act governing the use of computer access and surveillance devices powers should be repealed and replaced with a new Act,” it declared.
