Peter A Clarke

The long awaited discussion paper into Invasions of Privacy is to be released on 19 March.  It will be interesting to see what new perspectives it will provide on an issue so comprehensively covered in the ALRC’s 2008 report For Your Information: Australian Privacy Law and Practice (ALRC Report 108).  It is likely to recommend a statutory right of privacy, much as every Law Reform Commission has done when reviewing privacy issues in the last 30+ years, but also look at the patchy, inconsistent between jurisdictions, inadequate and sometimes obsolete surveillance legislation that exist at both a state and Commonwealth level.  If the Commonwealth Government baulks at introducing a statutory right of privacy, which will have to be for non legal reasons, it can at least focus on reforming the surveillance regulation which is fast falling into disrepute.

On the surveillance question the Privacy Commissioner has commented about the relative carte blanche the police seem to be enjoying in accessing private communications (and their unquenchable desire for more in the form of metadata)

Australia’s privacy commissioner says reforms are needed to ensure law enforcement agencies act proportionately when they access people’s private communications.

The commissioner has joined Australia’s intelligence watchdog, the Inspector General of Intelligence and Security, in flagging potential adjustments to the surveillance regime to ensure agencies strike the correct balance between protecting consumer privacy and conducting necessary investigations to prevent crimes.

“There is a clear public interest in allowing law enforcement and intelligence agencies to access communications where it is necessary for the prevention of serious and organised crime and threats to Australia’s national security,” the privacy commissioner, Timothy Pilgrim, says in a new submission to the Senate.

“However, by their very nature such activities will require access to the private communications of individuals. Such accesses should be proportional to the risk they seek to address.”

Pilgrim says current proportionality tests in legislation allowing people’s communications to be intercepted should be re-examined, and government could also consider reducing the number of agencies able to access private telecommunications data.

He adds that there is merit in considering changes that would make the current regulatory approaches to handling personal data less fragmented.

“Greater consistency across the accountability framework for law enforcement and intelligence agencies could be achieved by ensuring that the different regulatory frameworks are underpinned by a common set of considerations that reflect Australian community expectations about how personal information is handled,” Pilgrim says.

“In addition, clearly identifying the regulator that is responsible for oversight of each agency would serve to bolster the public’s confidence that effective accountability measures are in place.”

The arguments are being put as part of a new Senate inquiry into the telecommunications interception regime set up by the Greens and endorsed by Labor in the wake of revelations by the National Security Agency contractor-turned-whistleblower Edward Snowden about the extent and reach of international digital surveillance.

Recent disclosures about domestic activity, published by Guardian Australia, include evidence that agencies attempted to listen in on the mobile phone of the Indonesian president, and also targeted the phones of his wife and their inner circle in 2009; and Australian intelligence offered to share metadata collected from ordinary citizens with its major intelligence partners in 2008.

The IGIS, which polices the intelligence agencies, has made a separate submission to the inquiry suggesting the overarching regulatory regime could make a clearer statement about its dual objectives – namely protecting national security, and respecting consumer privacy.

The intelligence watchdog has also given cautious endorsement to the idea that there should be more public disclosure about Asio’s use of interception powers. It is, however, less keen than the privacy commissioner on reworking proportionality tests.

A separate inquiry into these issues in 2013 by the joint parliamentary committee on intelligence and security recommended reform of the regime to bring it into line with contemporary expectations, including the insertion of a new objectives clause into telecommunications legislation which makes explicit the dual objectives of the regime – namely “to protect the privacy of communications” and “to enable interception and access to communications in order to investigate serious crime and threats to national security”.

It also recommended a reworking of proportionality tests. The substantial recommendations were not addressed by the former Labor government before the 2013 federal election.

The Abbott government is yet to make clear its position on these specific issues – but thus far has been stridently critical about the Snowden revelations.

The prime minister, the foreign minister and the attorney general have argued the domestic surveillance regime, and Australia’s global intelligence partnerships, serve the national interest. The Coalition opposed the creation of the new Senate inquiry into the telecommunications interception regime.