Submissions sought on telecommunications interception changes

The Telecommunications (Interception and Access) Amendment Bill 2008 (Bill), which is intended to amend the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act), was recently passed by the House of Representatives and has now been sent to the Senate Legal and Constitutional Affairs Committee for consideration.

The Bill proposes to:

• extend (by 18 months) the sunset clause for network protection provisions that create exemptions to the general prohibition on listening to or copying communications passing over a telecommunication systems
• amend provisions relating to reporting obligations to avoid duplication, and
• extend the existing device-based named person warrant regime to authorise the interception of communications made by multiple telecommunications devices.

While the government has described the last of these changes as a ‘technical amendment’, some members of the Senate and other interest groups have raised privacy concerns about this expansion of interception powers.

The amendment would authorise interception of all communications made by means of any telecommunications device used by a person of interest under a device-based interception warrant. This dispenses with the current requirement to identify the particular telecommunication device in the warrant.

The Law Council has recommend a middle position under which each device to be intercepted would be identified in the warrant. They argue that this would reduce erroneous identification of the devices used by the person of interest, and so protect communications by innocent third parties from interception.

The proposed expansion of the warrant regime to allow interception of multiple devices also has the potential to magnify issues that were raised at the time device-based interception warrants were introduced in 2006. Device-based warrants are considered to involve a greater risk of intercepting communications of innocent third parties because of the unreliable character of existing device identification systems.

The Senate Legal and Constitutional Affairs Committee invites written submissions on the Bill by Wednesday 9 April 2008. The committee is due to report on Thursday 1 May 2008. For further information please visit the Senate Legal and Constitutional Affairs Committee website.

This article was written by Kaman Tsoi, Senior Associate, and Carol Burnton, Articled Clerk, of the Melbourne Corporate group.

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