Inquiry into Comprehensive Revision of the Telecommunications (Interception and Access) Act 1979 Northern Territory Police Submission to the Senate Legal and Constitutional Affairs Committee March 2014 www.police.nt.gov.au
Contents Executive Summary... 3 Background... 4 Response to Part A the Recommendations of the Australian Law Reform Commission... 5 Response to Part B the Recommendations Relating to the Act from the Parliamentary Joint Committee on Intelligence and Security... 7 Conclusion... 10 Northern Territory Police Submission Page 2 of 10
Executive Summary The Northern Territory Police (NT Police) support the comprehensive review of the Telecommunications (Interception and Access) Act 1979 (Cth) (the Act) for greater transparency, efficiency and ease of understanding and use, including: the inclusion of further serious offending against the person to be included in the definition of serious offence under the Act; the domestic violence proceedings in the definition of permitted purpose ; for disciplinary proceedings against public officers in the definition of permitted purpose ; amend the stored communication warrant provisions to provide a greater period of time in which to receive the information lawfully; and the inclusion of decryption requirements on service providers. Northern Territory Police Submission Page 3 of 10
Background The Northern Territory, with a population of 239,000 people and covering over 1.34 million square kilometres, is a gateway to Asia with daily direct flights to Singapore, Vietnam, East Timor and Indonesia. The Northern Territory has the highest proportion of people of Aboriginal descent, and is a multicultural community. The non-indigenous population is transient with high proportions of people working in mining and defence. The NT Police is an interception agency as declared under s 34 of the Act. The vision of the NT Police is a safe and secure Northern Territory. The NT Police 2013/14 Business Plan includes a goal to reduce crime by targeting and addressing the causal factors for crime and minimising the opportunity for crime. Strategic outputs by the NT Police for Government include: Ensuring the effective and efficient allocation and use of resources and progressing innovative solutions. Keeping the community safe through focusing on operational excellence and: - implementing crime reduction initiatives focusing on preventing and reducing the level of victim-based crime; and - preventing and reducing the level of re-offending. Northern Territory Police Submission Page 4 of 10
Response to Part A the Recommendations of the Australian Law Reform Commission The terms of reference of the Inquiry includes the recommendations of the Australian Law Reform Commission For Your Information: Australian Privacy Law and Practice, dated May 2008, particularly recommendation 71.2. This Report was tabled in August 2008 and included 34 recommendations relating to telecommunications, under Part J of that Report. Each recommendation under Part J of that Report is addressed individually as follows. Recommendation 71-1 relates to a redraft of the Telecommunications Act 1997 (Cth) and is supported by the NT Police. Recommendation 71-2 relates to considerations in redrafting the Telecommunications Act 1997 (Cth) and the Telecommunications (Interception and Access) Act 1979 (Cth) and is specifically highlighted in the terms of reference to which this submission relates. In a broad sense the NT Police support a review of the Telecommunications Act 1997 and the Telecommunications (Interception and Access) Act 1979. Specifically a review provides the opportunity to ensure the two Acts encompass emerging technologies both in terms of regulation and also interception and the prevention of the interception regime being circumvented by criminal enterprise. In regards to recommendation 71-2(e), the NT Police are not in favour of a public interest monitor. The authority and independence of the judicial officer appointed to authorise warrants under the Act is sufficient. Any extra consideration required can be addressed through legislative change instructing the judicial officer on considerations and weight to be placed on those things such as the public interest and privacy concerns. To some extent these conditions already exist. It is appropriate that consideration in relation to the issue of warrants is made by an independent officer of the Court, rather than a statutory position or political appointment. Recommendations 72-1 and 72-2 relate to disclosure under the Telecommunications Act 1997 (Cth). The NT Police support these recommendations. Recommendation 72-6 refers to a cross reference for both Acts. The NT Police are supportive of this recommendation as an aid to understanding and for those unfamiliar with the construct of the Act. Recommendation 72-7 refers to small changes to disclosure provisions. This is supported. There are public safety benefits in accessing contact information for people in an emergency for public health and safety. Recommendation 72-11 refers to clarifying disclosure of information held on the integrated public number database. This is supported. Northern Territory Police Submission Page 5 of 10
Recommendation 73-1 relates to requirements for destruction of records. The NT Police agree there should be some broad guidance on timeframes, within which agencies should review and destroy information. Guidance, rather than legislation can accommodate these differences and provide flexibility regarding when information should be destroyed by an agency. This guidance should address the destruction of intercepted material, stored communications and telecommunications data. Recommendation 73-2 relates to requirements for destruction of non-material records. The NT Police are of the view that there is an inherent risk in selectively deleting intercepted material and are not supportive of this recommendation. Often intercepted material will contain code words and veiled speech as a means to avoid detection by law enforcement agencies. The code words and language vary between individuals and groups. During the course of an intercept, in conjunction with other investigative means, the conversations are deciphered and it is made clear what is being referenced in the communication. This becomes problematic when conversations are selectively destroyed. A coded conversation may not be considered material until further into the intercept and investigation. If the intercepted communication becomes subject of Court proceedings there may be occasions where a defendant claims intercepted material has exculpatory value. If this were deleted this would not be available to the defendant and therefore be a disservice to justice. Recommendation 73-4 refers to bringing the reporting requirements of stored communications warrants and interception warrants into line. The NT Police are not supportive of this. Stored communications warrants provide a different level of intrusion to interception. Reporting requirements at present are considered satisfactory and address needs for ensuring compliance. Recommendation 73-5 refers to the Attorney-General s Department formulating guidelines to clarify existing provisions with regard to telecommunications data. The NT Police support this recommendation. Recommendation 73-6 refers to Ombudsman inspections of stored communications warrants. The NT Police submits that stored communications warrant record inspections should be the responsibility of the Northern Territory Ombudsman and that powers relevant to inspections should mirror those for interception warrants. Northern Territory Police Submission Page 6 of 10
Response to Part B the Recommendations Relating to the Act from the Parliamentary Joint Committee on Intelligence and Security The terms of reference of the Inquiry includes the recommendations of the Parliamentary Joint Committee on Intelligence and Security Inquiry into the Potential Reforms of Australia s National Security Legislation report, dated May 2013. This Report was tabled in June 2013, and included 43 recommendations, not all of them relevant to a law enforcement agency. The relevant recommendations are addressed individually as follows. Recommendation 1 refers to the insertion of an objectives clause. The NT Police supports the insertion of an objectives clause in the Act, with the following observations: The focus on the investigation of a serious crime and threats to national security excludes the interception and access of telecommunications for the purpose of emergency or disaster management, and for the protection of life and property where no crime exists. For example, the imminent suicide of a person. There is no crime; however, there is a need to prevent the death of a person. Any objectives clause should be constructed so as not to create a conflict between the Act and the Privacy Act 1988 (Cth). Recommendation 2 refers to the examination of the proportionality tests within the Act. The NT Police support the current tiered approach in that the level of authorisation required and considerations varies with the level of intrusiveness involved. Recommendation 3 refers to reviewing the reporting requirements of the Act to evaluate the privacy intrusion and public interest. The NT Police support this recommendation. Recommendation 4 refers to a review of the oversight arrangements. The NT Police are supportive and in favour of one reviewer for simplicity and efficiency. The Ombudsman for the Northern Territory is the preferred reviewer. The Northern Territory Ombudsman currently has responsibility for inspections of the NT Police records as they relate to surveillance devices and conduct these inspections simultaneously with the inspections under the Act. This is more efficient for both parties, and there is a reduced cost to Government by conducting these with a local authority. Recommendation 5 refers to reviewing the threshold for access to telecommunications data. The NT Police supports this recommendation. Recommendation 6 refers to standardisation of thresholds for access to content. The NT Police supports this recommendation. Northern Territory Police Submission Page 7 of 10
Recommendation 7 refers to a model of attribute based interception. The NT Police supports this recommendation. Recommendation 8 refers to a review of the information sharing provisions of the Act. The NT Police supports this recommendation. Recommendation 9 refers to the removal of duplication in the legislation. The NT Police supports this recommendation. Recommendation 10 refers to the development of a single warrant regime. The NT Police support further consideration of a single warrant regime noting the following: Currently there is reasonable difference in the threshold required to obtain a telecommunications intercept warrant or stored communications warrant. The NT Police consider the intrusiveness of the two warrants differs sufficiently to justify the different threshold. Examination of a single warrant regime will need to address this. At present access to stored communications usually follows a preservation order. Such an order is crucial in accessing stored communications given the rapid deletion of stored communications by some carriers. Removal of the concept of stored communication would need to keep the concept of a preservation order in some form. Recommendation 16 refers to the creation of an offence for a failure to assist in decrypting communications. The NT Police supports this. Telecommunications has and continues to transfer from traditional telephony to internet protocol (IP) based services. The ability to interpret intercepted communications is more important than ever with the move to encrypted IP based communications. The move from traditional telephony to IP based services could not have been envisaged on the creation of the Act. The NT Police support the requirement of service and product providers to assist in decryption. Recommendation 18 refers to a comprehensive revision of the Act. The NT Police supports this recommendation. Recommendation 42 refers to data retention. The NT Police are supportive of a data retention regime of two years. Such a regime would assist law enforcement agencies in investigating serious crimes. The NT Police are not in favour of excluding browser history. This is inconsistent with the spirit of a revised Act being technology neutral. With the shift from traditional telephony services to IP based services communications taken place on Facebook, Twitter, Google Plus and other IP platforms. This data may be included in browser history and is as important to capture as telephone records for law enforcement purposes. Recommendation 43 relates to oversight and reporting of any data retention scheme that may be adopted. The NT Police supports this recommendation. Northern Territory Police Submission Page 8 of 10
More broadly the NT Police seek that any review of the Act considers an update to the serious offence provisions contained in s 5D including the following: The NT Police support a simplification of the current serious offence definition to provide that all offences that carry a period of imprisonment of five years or more be considered a serious offence for the purposes of the Act. If necessary the definition could provide for specific exclusions, should it be determined that a particular category of offence should not be included. Should this not occur, the NT Police seeks to have the following offence categories included in the definition of serious offence: o The inclusion in s 5D(2) of the offence of sexual intercourse without consent, commonly referred to as rape. This offence is punishable by 14 years imprisonment in the Northern Territory. o The inclusion in s 5D(2) of the offence of sexual intercourse or gross indecency with a child under 16 years. This offence is punishable by 16 years imprisonment in the Northern Territory. o The inclusion in s 5D(2) of the offence of attempt to pervert justice. This offence is punishable by 15 years imprisonment in the Northern Territory. The NT Police would further seek for a review of the Act to consider amending the provisions relating to permitted purpose to include the following: Proceedings relating to the application for a domestic violence order and bail applications for matters involving domestic violence. The NT Police consider domestic violence as being a significant form of harm within the community and have over recent years implemented strategies to combat domestic violence. Most homicides and assaults in the Northern Territory are domestic violence related. The Act includes a permitted purpose being used for police discipline proceedings. The NT Police consider this should be expanded to include all public officials. The NT Police have encountered internal investigations where police officers and other public officials have been involved in serious breaches of discipline. The police officer has had their employment terminated and the public officer has not been dealt with for the same course of conduct, due to the difference in the provisions of permitted purpose. The stored communications process should be amended to remove the five day period the warrant is active. Intercepting agencies are beholden to carriers to comply with this five day period to comply with the Act and ensure the material received has been done so lawfully. The NT Police propose the warrant be active for a period of seven business days and place the burden on carriers to comply. Northern Territory Police Submission Page 9 of 10
Access to telecommunications material should not be reduced to serious criminal offending or threats to the national security. Many matters exist outside of these parameters that law enforcement considers relevant and in the public interest. They are: o disaster and emergency management including disaster recovery; o missing persons; o threats of serious harm or danger to a person s life, such as suicide; and o search and rescue. Conclusion The NT Police support a review of the Telecommunications (Interception and Access) Act 1979 (Cth) and the Telecommunications Act 1997 (Cth) to provide greater simplicity, clarity and efficiency of operation under those Acts. The reviewed Telecommunications (Interception and Access) Act 1979 (Cth) should include an update to the serious offence provisions at s 5D to include a number of serious offences currently omitted from the Act. Northern Territory Police Submission Page 10 of 10