Simon Bronitt and James Stellios ANU College of Law, The Australian National University Regulating Telecommunications Interception and Access: A Seachange in Surveillance Laws

Key Issues and Questions  The 2006 Act represents a landmark reform to the telecommunications interception regime in Australia.  New power to access stored communications provide state with further tools for security and law enforcement purposes.  Legal & Policy Issues  What is the impact of the new legislative scheme?  Are existing safeguards effective?  Has privacy have been ‘balanced’ away in favour of providing state with enhanced surveillance tools?  Is a balancing approach wrong?

Interception Regime  Trends since 1979: Normalization of Extraordinary Powers The Emergence of Regulatory Surveillance: Beyond Serious Crime From Prohibition to Permission From Intelligence-Gathering to Evidence-Gathering From Federal to National Surveillance From Judicial to Administrative Control

History - Trends AGENCYRelevant StatisticsApplications for Part 2.5 (Part VI) Warrants 93/9495/9601/0202/0305/06 AFPMade Refused/Withdrawn Issued NSW Crime Commission Made Refused/Withdrawn Issued NSW PoliceMade Refused/Withdrawn Issued TotalMade Refused/Withdrawn Issued

The Surveillance Seachange? Seachange … a ‘noticeable and unexpected transformation’ (Oxford English Dictionary) TI versus TIA Surveillance  ‘Live’ Interception versus access to stored data Surveillance Warrant: The New Form of Search Warrant  More or Less Privacy intrusive?  SMS & Deserving Less Protection (or Y-Gen Prejudice)? Debased Process of Law Reform

Human Rights and Remedies ‘Front End’ versus ‘Back End’ Accountability Demise of Class 1 and Class 2 Warrants Citizen Suits? Effective or Illusory remedies? Privacy: Paramount or Subordinate?

Telecommunications Interception Amendments (TIA)  New security/law enforcement tools: Device specific warrants B-Party warrants  Regulation of stored communications

The Warrant System  Two ways in which privacy is protected: Privacy as a factor in issuing process Use of judges in issuing process  Reality does not match theory: Privacy likely to be outweighed by law enforcement/security purposes Judges have a limited role in process

Warrants Issued  Number of Warrants Issued in by Fed. Court Judges, Family Court Judges, Nominated AAT Members and Fed. Magistrates (from Telecommunications (Interception) Act 1979: Report for Year ending 30 June 2005, Table 29) IssuerNumber issuing warrants Total Warrants issued Family Court Judges19179 Federal Court Judges213 Federal Magistrates260 Nominated AAT Members282691

‘Balancing’ Rhetoric  ‘Balancing’ model in law enforcement context problematic  In telecommunications interception/access context, law enforcement/security has balanced away privacy interests

Conclusions  Observations are tentative  Changes in the regulatory context have substantially affected privacy  Mechanisms for further protection: Public interest monitor Destruction requirements Notification  Rejection of ‘balancing’ models  Placing privacy at the centre of law reform