EXPLANATORY STATEMENT

Issued by the Authority of the Attorney-General

Telecommunications (Interception and Access) Act 1979

Telecommunications (Interception and Access) (Obligation to Keep Records) Instrument 2015

Introduction

Authority

1. Subsection 186A(2) of the Telecommunications (Interception and Access) Act 1979 (Principal Act), inserted by the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015, provides that the Minister may, by legislative instrument, prescribe kinds of documents and other materials that the chief officer of an enforcement agency must cause to be kept in the agency’s records.

Background

2.      The Principal Act provides that enforcement agencies are prohibited from authorising access to telecommunications data relating to a journalist, or their employer, if a purpose of making the authorisation is to identify a journalist’s source, unless a journalist information warrant has been obtained.

3.      Subsection 186A(1) of the Principal Act prescribes a range of records that an enforcement agency must keep.  The record-keeping requirements assist the Commonwealth Ombudsman to undertake inspections of enforcement agencies under Chapter 4A of the Principal Act, to assess enforcement agency compliance with Chapter 4 (‘Access to telecommunications data’) of the Principal Act.  

4.      Subsection 186A(2) empowers the Minister to make legislative instruments supplementing enforcement agencies’ record-keeping obligations under subsection 186A(1).

Purpose

5.      The Telecommunications (Interception and Access) (Obligation to Keep Records) Instrument 2015 prescribes kinds of documents and other materials that must be retained by enforcement agencies in relation to applications for journalist information warrants, including in relation to role of Public Interest Advocate.

6.      The purpose of the instrument is to support accountability, scrutiny, and transparency, in addition to the oversight role of the Ombudsman, in relation to access to telecommunications data under the journalist information warrant regime, and the performance of the role of Public Interest Advocate.

Operation

7.      The instrument is necessary to prescribe the types of documents and other material that must be retained by enforcement agencies.

8.      The instrument prescribes a range of documents and other materials for the purposes of paragraph 186A(1)(j) of the Principal Act. The effect of the instrument is to require the chief officer of an enforcement agency to keep those documents and other materials, or copies thereof, in the agency’s records for the period specified in subsection 186A(3) of the Principal Act. That period is the period beginning when the item came into existence and ending at the earlier of:

1. when 3 years have elapsed since the item came into existence; or
2. when the Ombudsman gives a report to the Minister under section 186J of the Principal Act that is about records that include the item.

1. The instrument commences on 13 October 2015.

Financial Impact Statement

10.  The instrument will have negligible financial impact on enforcement agencies, given they already produce many of the documents required to be retained.

Consultation

11.  Media organisations and affected enforcement agencies were consulted on the policy embodied in this instrument. Consultation with media organisations included approaching the Australian Press Council and other media organisations.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

12.  This instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the instrument

13.  The Telecommunications (Interception and Access) Act 1979 (Principal Act) enables enforcement agencies to access telecommunications data for the purposes of enforcing the criminal law, locating missing persons, enforcing a pecuniary penalty or protecting public revenue.

14.  As of 13 October 2015, the Principal Act will also prohibit enforcement agencies from authorising access to telecommunications data relating to a journalist, or their employer, if a purpose of making the authorisation is to identify a journalist’s source, unless a journalist information warrant has been obtained.

15.  Subsection 186A(1) of the Principal Act prescribes the record-keeping obligations relating to agencies’ access of metadata under the Principal Act. Subsection 186A(2) supplements those obligations by enabling the Minister to prescribe new classes of documentation to be kept as new record keeping needs are identified.

16.  Accordingly, the purpose of the Telecommunications (Interception and Access) (Obligation to Keep Records) Instrument 2015 is to require enforcement agencies to keep relevant documentation and materials relating to their applications for journalist information warrants and interactions with Public Interest Advocates.

Human rights implications

17.  The instrument engages the following rights:

• the right to protection against arbitrary and unlawful interferences with privacy in Article 17 of the International Covenant on Civil and Political Rights (ICCPR), and
• the right to freedom of expression in Article 19(2) and 19(3) of the ICCPR.

Article 17 of the ICCPR—right to protection against arbitrary and unlawful interferences with privacy

18.  Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence and that everyone has the right to the protection of the law against such interference or attacks. For interference with privacy not to be arbitrary it must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. Reasonableness, in this context, incorporates notions of proportionality to the end sought and necessity in the circumstances.

19.  The instrument promotes the right to privacy by enhancing protections, scrutiny and oversight over an enforcement agency’s access to telecommunications data authorised under the journalist information warrant regime.

Article 19(2) and 19(3) of the ICCPR—freedom of expression

20.  Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds. However, the right to freedom of expression carries special duties and responsibilities and may be subject to certain restrictions, but these shall only be such as are provided for by law and are necessary for specified purposes including the protection of national security or public order. The protection of public order includes law enforcement.

21.  The instrument protects freedom of expression by establishing additional measures of accountability and transparency for access to telecommunications data under the journalist information warrant regime. These measures promote confidence in the privacy of particular communications, while further assuring the integrity of the journalist information warrant regime.

22.  The extended oversight regime for access to telecommunications data under a journalist information warrant serves to protect freedom of speech, providing an important level of public accountability and scrutiny of agency practices by virtue of the Ombudsman’s public reporting regime.

Conclusion

23.  The instrument is compatible with human rights as it protects and promotes the rights to privacy and freedom of expression by strengthening the measures of accountability, transparency and scrutiny within the Principal Act. To the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

(GEORGE BRANDIS, QC)

ATTORNEY-GENERAL