|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Parliamentary Joint Committee on Human Rights |
|
Purpose
|
This bill (now Act) amends the Telecommunications (Interception and
Access) Act 1979 and the Australian Security Intelligence Organisation
Act 1979 to:
• enable the Director-General of Security to apply for a warrant
authorising the interception of a communication for the purpose
of obtaining
foreign intelligence from foreign communications; and
• enable the Attorney-General to issue foreign intelligence warrants
to collect foreign intelligence on Australians in Australia
who are acting for,
or on behalf of, a foreign power
|
|
Portfolio
|
Home Affairs
|
|
Introduced
|
House of Representatives, 25 August 2021
Passed both Houses on 26 August 2021
|
|
Rights
|
Life; security of the person; privacy; effective remedy; rights of the
child; life; torture and ill-treatment
|
1.1 This bill (now Act) amends the Telecommunications (Interception and Access) Act 1979 (TIA Act) and the Australian Security Intelligence Organisation Act 1979 (ASIO Act) to expand the application of Australia's foreign intelligence warrant framework to domestic communications and Australian citizens and permanent residents.[2]
1.2 Schedule 1 of the bill allows the Director-General of Security to apply to the Attorney-General for a foreign communications warrant authorising the interception of communications to obtain foreign intelligence, including where the geographic location of the sender and recipient cannot be determined prior to interception.[3] The effect of this measure is to authorise interception of domestic communications, which was otherwise prohibited under section 11C of the TIA Act.[4] The warrant application is required to specify how the proposed interception of communications would be conducted, including how the risk of intercepting domestic communications would be minimised.[5] New subsection 11C(6) of the TIA Act requires the Attorney-General to issue a mandatory procedure for the screening of intercepted communications; the destruction of domestic communications; and notifying the Inspector-General of Intelligence and Security (IGIS) of any identified domestic communications that would not be destroyed because they relate, or appear to relate, to activities that present a significant risk to a person's life.[6] The mandatory procedure must be in force in order for the Attorney-General to issue a foreign communications warrant.[7] The amendments made by the bill also require all records of irrelevant intercepted communications (not just domestic communications) to be destroyed unless the communication relates, or appears to relate, to activities that present a significant risk to a person's life.[8]
1.3 Schedule 2 of the bill enables the Attorney General to issue foreign intelligence warrants, telecommunications service warrants, named person warrants and foreign communications warrants to collect foreign intelligence on Australian citizens or permanent residents in Australia who are reasonably suspected of acting for, or on behalf of, a foreign power[9] A foreign power is defined as a foreign government, an entity that is directed or controlled by a foreign government or governments, or a foreign political organisation.[10] Warrants for the collection of foreign intelligence can authorise a broad range of acts or things (including surveillance, intercepting communications and entering premises) for the purpose of obtaining foreign intelligence relating to a matter that is in the interests of Australia's national security, Australia's foreign relations or Australia's national economic well‑being.[11] An application for these warrants to be issued in relation to an Australian citizen or permanent resident must include the grounds on which the Director-General of Security suspects that the person is acting for, or on behalf of, a foreign power, and the Attorney-General must be satisfied that the person is, or is reasonably suspected of acting for a foreign power.[12]
1.4 To the extent that the expanded application of the foreign intelligence warrant framework to Australian citizens and permanent residents would facilitate the investigation, disruption and prevention of serious crimes against persons (such as terrorist attacks), the measures may promote the right to life and security of the person. The right to life imposes an obligation on the state to protect people from being killed by others or identified risks.[13] The right imposes a duty on States to take positive measures to protect the right to life, including an obligation to take adequate preventative measures in order to protect persons from reasonably foreseen threats, such as terrorist attacks or organised crime, as well as an obligation to take appropriate measures to address the general conditions in society that may threaten the right to life, such as high levels of crime and gun violence.[14] Furthermore, States have an obligation to investigate and, where appropriate, prosecute perpetrators of alleged violations of the right to life, even where the threat to life did not materialise.[15] The right to security of the person requires the state to take steps to protect people against interference with personal integrity by others.[16]
1.5 The statement of compatibility states that the rights to life and security of the person are promoted by the bill insofar as it enhances the ability of intelligence agencies to identify and respond to foreign threats, including malicious cyber activity targeting Australian interests, terrorist communication, and foreign intelligence services operating inside Australia.[17] More specifically, it notes that by removing the prohibition on intercepting domestic communications and allowing foreign intelligence to be collected on Australians, the measures will resolve a critical operational gap for intelligence agencies, thereby improving the agencies' ability to collect intelligence on, and uncover, terrorist plots and other serious threats to Australia.[18]
1.6 However, by authorising the interception of domestic communications and the issuing of warrants to collect foreign intelligence on Australian citizens and permanent residents, noting that such warrants authorise a broad range of acts or things (including surveillance, intercepting communications and entering premises), the measures also engage and limit the right to privacy. This limit on rights is acknowledged in the statement of compatibility.[19] The right to privacy includes respect for informational privacy, including the right to respect for private and confidential information, particularly the storing, use and sharing of such information.[20] It also includes the right to control the dissemination of information about one's private life. Additionally, the right to privacy prohibits arbitrary and unlawful interferences with an individual's privacy, family, correspondence or home.[21]
1.7 In addition, to the extent that the interception powers and foreign intelligence warrants are applied to children, it may also engage and limit the rights of the child, including the right not to be subject to arbitrary or unlawful interference with their privacy[22] and the right to have their interests taken into account as a primary consideration in all actions concerning them.[23] The latter right requires legislative, administrative and judicial bodies and institutions to systematically consider how children's rights and interests are or will be affected directly or indirectly by their decisions and actions.[24] The child's best interests includes the enjoyment of the rights set out in the Convention on the Rights of the Child, and, in the case of individual decisions, 'must be assessed and determined in light of the specific circumstances of the particular child'.[25]
1.8 The statement of compatibility states that the bill may limit the rights of the child because it makes no distinction between children and adults in the proposed amendments to foreign communications warrants or foreign intelligence warrants more broadly.[26] It notes that while the bill is not specifically directed at children, there is a legitimate need to collect foreign intelligence, even if the subject of the intelligence gathering is a child.[27] Specifically, the statement of compatibility states that the right of the child to have their best interests taken as a primary consideration in all actions concerning them is engaged by the bill insofar as it authorises the interception of children's communications under a foreign communications warrant and allow agencies to collect foreign intelligence on Australian children.[28]
1.9 Furthermore, if the warrants for the collection of foreign intelligence were to be issued inappropriately, or unauthorised actions carried out under the warrant, a person's right to privacy may be violated. The right to an effective remedy requires access to an effective remedy for violations of human rights.[29] This may take a variety of forms, such as prosecutions of suspected perpetrators or compensation to victims of abuse. While limitations may be placed in particular circumstances on the nature of the remedy provided (judicial or otherwise), states parties must comply with the fundamental obligation to provide a remedy that is effective.[30] The statement of compatibility does not acknowledge that the measures may have implications for the right to an effective remedy and as such, there is no human rights compatibility assessment in this regard.
1.10 The right to privacy and the rights of the child may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective. However, the right to effective remedy is absolute in requiring there be a remedy that is effective.
1.11 The statement of compatibility states that the measures pursue the objective of national security.[31] It states that the current prohibition on the interception of domestic communications results in intelligence agencies not intercepting a number of foreign communications that would likely be of foreign intelligence value, as it could risk the incidental interception of domestic communications.[32] By removing this prohibition and resolving a critical operational gap for intelligence agencies, the statement of compatibility notes that the ability of intelligence agencies to uncover terrorist plots, malicious cyber activity and other serious threats will be improved.[33] It further states that authorising the collection of foreign intelligence on Australians will close the current gap in the legal framework where foreign intelligence may be collected offshore on an Australian working for a foreign power, but that same intelligence cannot be collected inside Australia on that Australian under a warrant.[34] These objectives would appear to constitute legitimate objectives for the purposes of international human rights law, and the measures appear to be rationally connected to these objectives.
1.12 The key question is whether the measures are proportionate to achieving the stated objectives. Of particular relevance in assessing proportionality is whether the limitation is only as extensive as is strictly necessary to achieve the stated objectives; whether the measures are sufficiently circumscribed; whether the measures are accompanied by sufficient safeguards; and whether there is the possibility of oversight and the availability of review.[35] In this regard, European Court of Human Rights case law offers some useful guidance as to 'minimum safeguards that should be set out in law to avoid abuses of power' in the context of secret measures of surveillance.[36] Such safeguards include:
the nature of offences which may give rise to an interception order; the definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or destroyed.[37]
1.13 The European Court of Human Rights has reiterated the 'importance of adequate legislation of sufficient safeguards in the face of the authorities' enhanced technical possibilities to intercept private information' and collect masses of data.[38]
1.14 The statement of compatibility details numerous safeguards accompanying the measures, including:
• a request for a foreign communications warrant must specify how the risk of intercepting domestic communications will be minimised;[39]
• a request for foreign intelligence warrants must include details about the grounds on which the Director-General of Security suspects that the person is acting for, or on behalf of, a foreign power; and the Attorney‑General must not issue a warrant unless they are satisfied that the person is, or is reasonably suspected by the Director‑General of Security of, acting for, or on behalf of, a foreign power;[40]
• the Attorney‑General must be satisfied, on advice from either the Minister for Defence or the Minister for Foreign Affairs, that the collection of foreign intelligence is in the interests of Australia’s national security, foreign relations or economic well‑being; and that it is necessary to intercept communications in order to collect foreign intelligence;[41]
• the Attorney‑General must issue a mandatory written procedure for screening and destroying any identified domestic communications that may have been incidentally intercepted and a foreign communications warrant must not be issued unless that procedure is in force;[42]
• domestic communications and irrelevant intercepted communications must be destroyed unless the communication relates, or appears to relate, to activities that present a significant risk to a person’s life; and[43]
• the oversight functions of the IGIS.[44]
1.15 The statement of compatibility further notes that existing safeguards under the TIA Act and ASIO Act will also continue to apply, such as the ability for the Attorney‑General to place conditions and restrictions on warrants to limit the impact on the privacy of Australians, and the requirement that a foreign communications warrant be a warrant of last resort (that is, the Attorney‑General must be satisfied that relying on another foreign intelligence warrants (a telecommunications service warrant or a named person warrant) would be ineffective).[45]
1.16 These are important safeguards, some of which reflect the minimum safeguards identified by the European Court of Human Rights, and would likely assist with the proportionality of the measures. In particular, the requirement that the Director-General of Security specify how the risk of intercepting domestic communications will be minimised in their request for a foreign communications warrant may assist to ensure that any interference with privacy is only as extensive as is strictly necessary.[46]
1.17 However, questions arise as to whether these safeguards are adequate in all circumstances and in relation to all rights that may be limited. In particular, it is noted that many of the above safeguards rely on the executive being satisfied of certain matters, and these measures also appear to be directed towards protecting the right to privacy as opposed to the rights of the child. The statement of compatibility acknowledged that it is not possible to include particular safeguards to prevent the interception of children's communications given that it is impossible to know the age of the person prior to interception.[47] It notes that the general safeguards outlined above will also apply to children.[48] The strength of some of the above safeguards are assessed in turn below.
Issuing criteria
1.18 As noted above, a warrant must only be issued if the Attorney-General is satisfied that the Australian citizen or permanent resident is, or is reasonably suspected by the Director‑General of Security of, acting for, or on behalf of, a foreign power, and the collection of foreign intelligence must relate to a matter that is in the interests of Australia’s national security, foreign relations or national economic well‑being.[49] As noted in paragraph [1.65], the European Court of Human Rights has observed that a clear definition of the categories of people liable to have their communications intercepted is an important safeguard. More generally, in the context of mass surveillance and other broad measures to collect and retain communications data of large populations, the European Court of Human Rights has emphasised the importance of precisely circumscribing the extent of interference with fundamental rights, notably the right to privacy, to ensure that the interference is limited to what is strictl[50]necessary.50 Where a measure applies to a broad range of 'persons for whom there is no evidence capable of suggesting that their conduct might have a link, even an indirect or remote one, with serious crime', the European Court of Human Rights has held that the consequent interference with privacy may not be limited to what is strictl[51]necessary.51
1.19 While the bill defines the category of people to whom the measures would apply, this category is likely to encompass a wide range of people, including any Australian citizen or permanent resident who acts, or is suspected of acting, for, or on behalf of, a foreign government, foreign political organisation or other organisation directed or controlled by a foreign government. The purposes for which foreign intelligence would be collected are also broad, namely matters relating to Australia's national security, foreign relations or national economic well‑being. It is noted that it does not appear to be a requirement that there be a link with serious crime. Noting the breadth of people to whom these measures may apply and the broad purposes for which foreign intelligence would be collected, questions remain as to whether the measures are sufficiently circumscribed and the potential interference with privacy is only as extensive as is strictly necessary.
Mandatory procedure
1.20 A key safeguard identified in the statement of compatibility is the requirement that the Attorney-General issue a written mandatory procedure for the screening and destruction of domestic communications and that mandatory procedure must be in force for a foreign communications warrant to be issued (as outlined in paragraph [1.55]). The mandatory procedure is required to be reviewed within one year of it being issued and then every [52]ree years.52 The explanatory materials explain that the screening for domestic communications is intended to be a continuous process and would involve a range of automated and manua[53]processes.53 It states that identification of domestic communications may occur through different processes and at different points in time, and the requirement to screen for, and destroy, identified intercepted domestic communications does not cease following a single assessment; rather it is an ongoing [54]quirement.54
1.21 The exception to destroying intercepted domestic communications is where it relates, or appears to relate, to activities that present a significant risk to a person’s life. This exception also applies to the destruction of irrelevant intercepted communications. The explanatory memorandum explains that assessing whether the risk is significant will depend on how imminent the threat to a person’s life is and the likelihood of it coming to pass, taking into account the circumstances of the case.[55] It states that the term is intended to capture circumstances where there is a high likelihood that a person’s life is imminently in danger – for example, where a communication indicates a strong likelihood that a person has been taken hostage or an imminent terrorist attack will be carried out.[56] In these exceptional circumstances, the statement of compatibility states that the communication may be shared with relevant authorities in order to reduce or remove the risk to the person.[57] The statement of compatibility notes that this exception is very limited and would only apply to a significant risk to a person's life, where the likelihood of loss of life is real and imminent, or the scale of the threat is substantial.[58] The mandatory procedure would also require the IGIS to be notified any time this exception is relied on.[59]
1.22 The requirement to issue a mandatory procedure that provides for the screening and destruction of intercepted domestic communications would likely operate as an important safeguard against arbitrary interference with privacy. The exception to the requirement to destroy domestic communications appears to be sufficiently narrow to ensure that any interference with privacy through the interception, retention and sharing of domestic communications is only as extensive as is strictly necessary. Further, the person dealing with the domestic communications intercepted under a foreign communications warrant is required to comply with the mandatory procedure to the extent that it applies to them, with the IGIS overseeing compliance.[60] This requirement would further assist with the proportionality of the measures, although the strength of these safeguards will likely depend on how they operate in practice, including the contents of the mandatory procedure and its enforcement.
IGIS oversight and review mechanisms
1.23 A relevant factor in assessing whether a measure is proportionate is whether there is the possibility of oversight and the availability of review. In relation to the oversight functions of the IGIS, the statement of compatibility notes that the IGIS has strong powers to review the activities and procedures of intelligence agencies, including the issuing of warrants and the mandatory procedure, to ensure they act lawfully, with propriety and in a manner which respects human rights.[61] In the context of surveillance measures, the committee has previously noted that the availability of oversight by the IGIS may serve as an important safeguard against arbitrary and unlawful interference with privacy.[62] As recommended by the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, 'there must be no secret surveillance system that is not under review of an independent oversight body and all interferences must be authorised through an independent body'.[63]
1.24 However, the strength of these oversight frameworks will depend on the broader legislative context, in this case, the TIA Act and the ASIO Act. In its previous consideration of the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 (now Act), the committee commented that the oversight functions of the IGIS in relation to the powers under that bill had potential safeguard value, however its effectiveness in practice would depend on the clarity, precision and scope of the legislation.[64] In the absence of a foundational human rights assessment of the TIA Act and the ASIO Act, it is difficult to assess the strength of these oversight frameworks in the context of these measures.
1.25 As to review, the statement of compatibility does not address the availability of review mechanisms beyond the review functions of the IGIS. It is therefore not clear whether individuals subject to warrants for the collection of foreign intelligence would have access to effective review. In the context of covert surveillance measures, the committee has raised serious concerns that access to judicial review may not be effective in practice. This is because persons whose privacy would be interfered with are highly unlikely to be aware that they are the subject of a warrant application and will invariably be excluded from participating in the application proceedings. In cases where there is no requirement to notify the affected person once a surveillance warrant has been issued, it is highly unlikely that the person will be able to effectively access judicial review.[65] This has implications for the right to an effective remedy. In this regard, the European Court of Human Rights has held:
the very nature and logic of secret surveillance dictate that not only the surveillance itself but also the accompanying review should be effected without the individual's knowledge. Consequently, since the individual will necessarily be prevented from seeking an effective remedy of his own accord or from taking a direct part in any review proceedings, it is essential that the procedures established should themselves provide adequate and equivalent guarantees safeguarding his rights.[66]
1.26 In considering what constitutes an effective remedy where personal information is being collected in the context of covert surveillance activities, United Nations (UN) bodies and the European Court of Human Rights have observed that while effective remedies can take a variety of forms, they must be known and accessible to anyone with an arguable claim that their rights have been violated.[67] The European Court of Human Rights has held that:
the question of subsequent notification of surveillance measures is inextricably linked to the effectiveness of remedies and hence to the existence of effective safeguards against the abuse of monitoring powers, since there is in principle little scope for any recourse by the individual concerned unless the latter is advised of the measures taken without his or her knowledge and thus able to challenge their justification retrospectively.[68]
1.27 The European Court of Human Rights acknowledged that, in some instances, notification may not be feasible where it would jeopardise long-term surveillance activities.[69] However, it explained that:
[a]s soon as notification can be carried out without jeopardising the purpose of the restriction after the termination of the surveillance measure, information should, however, be provided to the persons concerned. [70]
1.28 It is not clear that a person whose privacy might have been interfered with under foreign intelligence warrants would ever be made aware of that fact (if it does not lead to a prosecution). In such circumstances, it does not appear that such a person would have access to adequate review mechanisms or to an effective remedy for any potential violation of their right to privacy. The existence of other safeguards and oversight frameworks, none of which offer an individual remedy, are unlikely to be sufficient to fulfil the international standard required for an effective remedy.
Issuing authority
1.29 Another relevant consideration in assessing the proportionality of measures dealing with surveillance and interception is the issuing authority for warrants authorising interference with privacy. While not an absolute requirement, judicial authorisation of surveillance activities is considered 'best practice' in international human rights law jurisprudence.[71] As the European Court of Human Rights has stated in relation to interception:
In a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge, judicial control offering the best guarantees of independence, impartiality and a proper procedure.[72]
1.30 The European Court of Human Rights has further stated that 'control by an independent body, normally a judge with special expertise, should be the rule and substitute solutions the exception, warranting close scrutiny'.[73] This approach has also been supported by the UN Special Rapporteur on the right to privacy, who included, in the 2018 draft general principles of the right to privacy, the requirement that where domestic law provides for the use of surveillance systems, that law shall:
provide that the individual concerned is likely to have committed a serious crime or is likely to be about to commit a serious crime and in all such cases such domestic law shall establish that an independent authority, having all the attributes of permanent independent judicial standing, and operating from outside the law enforcement agency or security or intelligence agency concerned, shall have the competence to authorise targeted surveillance using specified means for a period of time limited to what may be appropriate to the case.[74]
1.31 The UN Human Rights Committee has also recommended that States parties provide for 'judicial involvement in the authorization or monitoring of surveillance measures' and consider establishing 'strong and independent oversight mandates with a view to preventing abuses'.[75]
1.32 Noting that the issuing authority for warrants for collection of foreign intelligence is the Attorney-General on request of the Director-General of Security, it is necessary to closely scrutinise whether it is appropriate in these circumstances to entrust supervisory control to a non-judicial officer.[76] A key consideration in this regard is whether the issuing 'authority is sufficiently independent from the executive'.[77] In the context of these measures, the issuing authority is part of the executive, which departs from best practice under international human rights law. Noting the expansive powers contained in the bill and the likely significant interference with the right to privacy arising from the exercise of these powers, there are serious concerns that the right to privacy may not be adequately safeguarded by non-judicial authorisation of surveillance and interception activities.
1.33 While the measures pursue the legitimate objectives of protecting national security, closing intelligence gaps and improving intelligence capabilities, questions remain as to whether the measures are proportionate. Noting that the measures will substantially interfere with the right to privacy, the existence of strong safeguards is critical to ensure that such interference is lawful, not arbitrary and only as extensive as is strictly necessary. The measures are accompanied by some important safeguards, such as the mandatory procedure for the screening and destruction of domestic communications. However, questions remain as to whether these safeguards are sufficient in all circumstances and, noting the broad category of people to whom these measures apply, whether the measures are sufficiently circumscribed. Noting that judicial authorisation of surveillance and interception warrants is considered best practice in international human rights law, the fact that the relevant issuing authority is part of the executive raises concerns. Additionally, while the oversight functions of the IGIS are an important safeguard, it is unclear whether there is access to effective review, noting that it is unlikely the person whose right to privacy is limited will be aware of the use of the warrant against them. As such, there appears to be a risk that these measures may constitute an arbitrary limitation on the right to privacy, including the right of the child to privacy, and, in circumstances where the person whose privacy might have been interfered with is unaware of that fact, there does not appear to be access to an effective remedy for any potential violation of their rights.
1.34 The committee notes that this Act expands the application of Australia’s foreign intelligence warrant framework by removing the prohibition on interception of domestic communications and authorising the application of warrants to collect foreign intelligence on Australian citizens and permanent residents who are reasonably suspected of acting for, or on behalf of, a foreign power.
1.35 The committee considers that to the extent that these measures would facilitate the investigation, disruption and prevention of serious crimes against persons (such as terrorist attacks), they may promote the right to life and security of the person. However, the committee notes that by authorising the interception of domestic communications and the collection of foreign intelligence on Australian citizens and permanent residents, the measures also engage and limit the right to privacy, and to the extent that the powers and warrants are applied to children, it may also engage and limit the rights of the child. These rights may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate. It also engages the right to an effective remedy for any violation of rights.
1.36 The committee considers that these measures, in seeking to protect national security, close intelligence gaps and improve intelligence capabilities, pursue legitimate objectives and would appear to be rationally connected to the stated objectives. However, the committee considers that questions remain as to whether the measures are a proportionate means of achieving the stated objectives.
1.37 The committee considers that the measures are accompanied by some important safeguards, such as the mandatory procedure for the screening and destruction of domestic communications. However, questions remain as to whether these safeguards are sufficient in all circumstances and, noting the broad category of people to whom these measures apply, whether the measure is sufficiently circumscribed. The committee notes that judicial authorisation of surveillance and interception warrants is considered best practice in international human rights law, yet this bill provides that the relevant issuing authority is part of the executive. Additionally, the committee considers that the oversight functions of the IGIS are an important safeguard but notes that it does not appear there is access to effective review. This is because it is unlikely the person whose right to privacy is limited will be aware of the use of the warrant against them. As such, the committee considers that there appears to be a risk that these measures may constitute an arbitrary limitation on the right to privacy, to which they may not have access to an effective remedy.
1.38 The committee notes with some concern from a scrutiny perspective that this bill passed both Houses of Parliament one sitting day after its introduction, before the committee had an opportunity to scrutinise this legislation. As the bill has now passed, the committee makes no further comment.
1.39 Subsection 65(1) of the TIA Act allows the Director-General of Security to communicate to another person lawfully intercepted information (other than ASIO computer access intercept information) and interception warrant information.[78] Subsection 137(1) of the TIA Act allows the Director-General of Security to communicate lawfully accessed information, preservation notice information and stored communications warrant information to another person. Schedule 3 of this bill allows a person to whom foreign intelligence information has been communicated,[79] to communicate that information to such persons, and in such a manner, as approved by the Attorney-General.[80] The person may also use that foreign intelligence information for such purposes as are approved by the Attorney-General and a record of the information may be made.[81]
1.40 By authorising the sharing of protected foreign intelligence information to such persons, and in such a manner, as approved by the Attorney-General as well as authorising the use and recording of that information, the measure engages and limits the right to privacy. The right to privacy includes respect for informational privacy, including the right to respect for private and confidential information, particularly the storing, use and sharing of such information.[82] It also includes the right to control the dissemination of information about one's private life.
1.41 As it is unclear who the protected information would be shared with in practice, it is unclear whether other human rights may be engaged by this measure. For example, if the effect of the measure was to authorise the sharing of protected information with foreign persons, such as foreign police, intelligence or security agencies, and this resulted in the investigation and prosecution of an offence that is punishable by the death penalty in that foreign country, the measure may also engage and limit the right to life.[83] The right to life imposes an obligation on Australia to protect people from being killed by others or from identified risks. While the International Covenant on Civil and Political Rights does not completely prohibit the imposition of the death penalty, international law prohibits states which have abolished the death penalty (such as Australia) from exposing a person to the death penalty in another state.[84] The provision of information to other countries that may be used to investigate and convict someone of an offence to which the death penalty applies is also prohibited.[85]
1.42 Additionally, the sharing of protected information, including personal information, with foreign persons, may, in some circumstances, expose individuals to a risk of torture or other cruel, inhuman or degrading treatment or punishment. International law absolutely prohibits torture and cruel, inhuman or degrading treatment or punishment.[86] There are no circumstances in which it will be permissible to subject this right to any limitations.
1.43 It is noted that the statement of compatibility did not provide a human rights compatibility assessment in relation to this measure, and as such, it is difficult to assess whether the proposed limitation on the right to privacy as well as any other rights is permissible. While the broader objectives of this bill are likely to be legitimate (as discussed as paragraph [1.64]), it is not clear whether there is a pressing and substantial concern that gives rise to the need for this specific measure. In considering proportionality, it is not clear what safeguards or other oversight mechanisms exist to protect the right to privacy. The European Court of Human Rights has highlighted the importance of external supervision and remedial measures in the context of governments 'transferring and sharing amongst themselves intelligence retrieved by virtue of secret su[87]eillance'.87 The Court found 'external, preferably judicial, a posteriori control of secret surveillance activities, both in individual cases and as general supervision' to be of particular[88]mportance.88 It observed:
The significance of this control cannot be overestimated in view of the magnitude of the pool of information retrievable by the authorities applying highly efficient methods and processing masses of data, potentially about each person, should he be, one way or another, connected to suspected subjects or objects of planned terrorist attacks.[89]
1.44 It is does not appear that the bill contains such a control mechanism whereby an independent, preferably judicial, authority has oversight or control over the provisions which authorise the onwards disclosure of protected information. In addition, noting there does not appear to be any legislative limit on the purposes for which the information may be used, so long as it is approved by the Attorney-General, there are questions as to whether the measure is sufficiently circumscribed and any interference with privacy is only as extensive as is strictly necessary.
1.45 It is also not clear whether any safeguards exist to ensure that protected information is not shared with a foreign person in circumstances that could expose a person to the death penalty or lead to a person being tortured, or subjected to cruel, inhuman or degrading treatment or punishment.
1.46 The committee notes the Act allows a person to whom foreign intelligence information has been communicated to further communicate that information to such persons, and in such a manner, as approved by the Attorney-General. Such persons may use that foreign intelligence information for such purposes as are approved by the Attorney-General and make a record of the information.
1.47 The committee notes that by authorising the sharing, use and recording of protected foreign intelligence information, the measure engages and limits the right to privacy. However, as the statement of compatibility did not provide a human rights compatibility assessment in relation to this measure, the committee notes that it is difficult to assess whether the proposed limitation on the right to privacy is permissible. The committee considers that, in the future, the statement of compatibility for such bills should include an assessment of each proposed measure in order to assist the committee in undertaking its analysis. The committee notes that it is also unclear whether the measure may have implications for other human rights. For example, if the measure had the effect of facilitating information sharing with foreign persons, such as foreign police or intelligence agencies, it may have implications for the right to life and the prohibition against torture or other cruel, inhuman or degrading treatment or punishment.
|
Suggested action
1.48 The committee considers that the proportionality of this measure,
particularly as regards the right to privacy, may be assisted
were the Act
amended to:
(a) provide some form of control mechanism whereby an independent,
preferably judicial, authority has oversight or control over the
provisions
which authorise the onwards disclosure of protected information, particularly if
disclosure involves foreign persons;
(b) specify the persons or class of persons who the Attorney-General may
approve for the purposes of information sharing and limit
such persons to those
who perform certain relevant functions, such as intelligence gathering and law
enforcement;
(c) require that, prior to sharing protected information with a foreign
person, the authorised officer must be satisfied that adequate
privacy
protections are in place around the handling of personal information and
protection of personal information from unauthorised
disclosure by the foreign
country; and
|
1.49 The committee notes that as this bill has now passed both Houses of Parliament it makes no further comment.
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Foreign Intelligence Legislation Amendment Bill 2021, Report 11 of 2021; [2021] AUPJCHR 111.
[2] Foreign intelligence is defined as intelligence about the capabilities, intentions or activities of people or organisations outside Australia. See Explanatory memorandum, p. 2.
[3] Schedule 1, items 2–5.
[4] Telecommunications (Interception and Access) Act 1979, subsection 11C(2).
[5] Schedule 1, item 6, proposed paragraph 11C(3)(a).
[6] Schedule 1, item 10, proposed subsection 11C(6).
[7] Schedule 1, item 7, subsection 11C(4).
[8] Schedule 1, item 9, proposed paragraph 11C(5)(c)–(d).
[9] Schedule 2, items 1–2, 4–7.
[10] Australian Security Intelligence Organisation Act 1979, section 4 as applied by Schedule 2, item 3. .
[11] Australian Security Intelligence Organisation Act 1979, paragraphs 27A(1)(a) and (b); Telecommunications (Interception and Access) Act 1979, sections 11A, 11B and 11C.
[12] Schedule 2, items 2, 4–6.
[13] International Covenant on Civil and Political Rights, article 6(1) and Second Optional Protocol to the International Covenant on Civil and Political Rights, article 1. UN Human Rights Committee, General Comment No. 6: article 36 (right to life) (2019) [3]: the right ‘concerns the entitlement of individuals to be free from acts and omissions that are intended or may be expected to cause their unnatural or premature death, as well as to enjoy a life with dignity’.
[14] UN Human Rights Committee, General Comment No. 6: article 36 (right to life) (2019) [21], [26]. See also UN Human Rights Committee, General Comment No. 6: article 6 (right to life) (1982) [5].
[15] UN Human Rights Committee, General Comment No. 6: article 36 (right to life) (2019) [27]. The UN Human Rights Committee has stated that investigations in alleged violations of the right to life ‘must always be independent, impartial, prompt, thorough, effective, credible and transparent’: [28].
[16] International Covenant on Civil and Political Rights, article 9(1).
[17] Statement of compatibility, p. 19.
[18] Statement of compatibility, pp. 19–20.
[19] Statement of compatibility, pp. 12–15.
[20] International Covenant on Civil and Political Rights, article 17. Every person should be able to ascertain which public authorities or private individuals or bodies control or may control their files and, if such files contain incorrect personal data or have been processed contrary to legal provisions, every person should be able to request rectification or elimination: UN Human Rights Committee, General Comment No. 16: Article 17 (1988) [10]. See also, General Comment No. 34 (Freedom of opinion and expression) (2011) [18].
[21] UN Human Rights Committee, General Comment No. 16: Article 17 (1988) [3]–[4].
[22] Convention on the Rights of the Child, article 16.
[23] Convention on the Rights of the Child, article 3(1).
[24] UN Committee on the Rights of Children, General Comment 14 on the right of the child to have his or her best interest taken as primary consideration (2013).
[25] UN Committee on the Rights of the Child, General comment 14 on the right of the child to have his or her best interests taken as a primary consideration (2013) p. 3. The UN Committee has further stated 'the expression "primary consideration" means that the child's best interests may not be considered on the same level as all other considerations. This strong position is justified by the special situation of the child'. See also IAM v Denmark, UN Committee on the Rights of the Child Communication No.3/2016 (2018) [11.8].
[26] Statement of compatibility, p. 20.
[27] Statement of compatibility, p. 20.
[28] Statement of compatibility, pp. 20–21.
[29] International Covenant on Civil and Political Rights, article 2(3).
[30] See, UN Human Rights Committee, General Comment 29: States of Emergency (Article 4), (2001) [14].
[31] Statement of compatibility, pp. 13–14.
[32] Statement of compatibility, p. 13.
[33] Statement of compatibility, p. 13.
[34] Statement of compatibility, p. 14.
[35] In assessing whether the limitation is only as extensive as is strictly necessary to achieve its legitimate objective, the case of Szabó and Vissy v Hungary, European Court of Human Rights, Application no. 37138/14 (2016) provides some guidance. At [73], the Court held that the test of strict necessity is to be applied in the context of secret surveillance, stating that 'given the particular character of the interference in question and the potential of cutting-edge surveillance technologies to invade citizens' privacy, the Court considers that the requirement "necessary in a democratic society" must be interpreted in this context as requiring "strict necessity"'. The Court further stated that a secret surveillance measure must be strictly necessary in two aspects: for safeguarding democratic institutions and for obtaining vital intelligence in an individual operation.
[36] Szabó and Vissy v Hungary, European Court of Human Rights, Application no. 37138/14 (2016) [56]–[57].
[37] Szabó and Vissy v Hungary, European Court of Human Rights, Application no. 37138/14 (2016) [56].
[38] Szabó and Vissy v Hungary, European Court of Human Rights, Application no. 37138/14 (2016) [68].
[39] Statement of compatibility, p. 9.
[40] Statement of compatibility, p. 11.
[41] Statement of compatibility, pp. 11 and 14.
[42] Statement of compatibility, p. 13.
[43] Statement of compatibility, p. 13.
[44] Statement of compatibility, p. 12.
[45] Statement of compatibility, pp. 10, 14–15.
[46] Schedule 1, item 6, proposed paragraph 11C(3)(a). It is noted that while this amendment may assist with proportionality, it is not clear why existing paragraph 11C(3)(a) of the TIA Act would need to be repealed and why it could not remain as an additional criterion. Existing paragraph 11C(3)(a) of the TIA Act requires a warrant application to 'include a description that is sufficient to identify the part of the telecommunications system that is likely to carry the foreign communications whose interception is sought'.
[47] Statement of compatibility, p. 21.
[48] Statement of compatibility, p. 20.
[49] Schedule 2, items 2, 4–6; Australian Security Intelligence Organisation Act 1979, paragraphs 27A(1)(a) and (b).
[50] Digital Rights Ireland Ltd v Ireland, European Court of Human Rights (Grand Chamber), Joined Cases C-293/12 and C-594/12 (2014) [65]. More generally, at [54], the Court stated that 'the EU legislation in question must lay down clear and precise rules governing the scope and application of the measures in question and imposing minimum safeguards so that the persons whose data have been retained have sufficient guarantees to effectively protect their personal data against the risk of abuse and against any unlawful access and use of that data'.
[51] Digital Rights Ireland Ltd v Ireland, European Court of Human Rights (Grand Chamber), Joined Cases C-293/12 and C-594/12 (2014) [58]: regarding whether the interference caused by European Union Directive 2006/24, which authorised the collection and retention of communications data of 'practically the entire European population', was limited to what was strictly necessary, the Court stated that the Directive 'affects, in a comprehensive manner, all persons using electronic communications services, but without the persons whose data are retained being, even indirectly, in a situation which is liable to give rise to criminal prosecutions. It therefore applies even to persons for whom there is no evidence capable of suggesting that their conduct might have a link, even an indirect or remote one, with serious crime'.
[52] Schedule 1, Item 10, subsection 11C(10).
[53] Explanatory memorandum, pp. 26–27; statement of compatibility, p. 10.
[54] Explanatory memorandum, pp. 26–27.
[55] Explanatory memorandum, p. 26.
[56] Explanatory memorandum, p. 27; statement of compatibility, p. 19.
[57] Statement of compatibility, p. 19.
[58] Statement of compatibility, p. 19.
[59] Schedule 1, item 10, paragraph 11C(6)(c). See also explanatory memorandum, p. 27.
[60] Schedule 1, item 10, subsection 11C(8); explanatory memorandum, p. 10, 27–28.
[61] Statement of compatibility, pp. 14, 15 and 21; explanatory memorandum, p. 28.
[62] See Parliamentary Joint Committee on Human Rights, Report 3 of 2021 (17 March 2021), pp. 91–95.
[63] UN Human Rights Council, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, A/HRC/13/37 (2009) [62].
[64] Parliamentary Joint Committee on Human Rights, Report 3 of 2021 (17 March 2021), p. 93. The comments of the IGIS in relation to the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 are relevant in the context of this bill. It stated that 'effective oversight is more readily achieved where the scope and content of intelligence or law enforcement powers are articulated clearly and fully on the face of the legislation and where consistency is sought, where possible, across like regimes. This is especially so in respect of coercive or covert powers'. See Inspector-General of Intelligence and Security, Submission 18, p. 8 to the Parliamentary Joint Committee on Intelligence and Security, Review of the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020.
[65] Parliamentary Joint Committee on Human Rights, Report 3 of 2021 (17 March 2021), p. 93–94.
[66] Roman Zakharov v Russia, European Court of Human Rights, Grand Chamber, application no. 47143/06 (4 December 2015) [233].
[67] Report of the Office of the United Nations High Commissioner for Human Rights on the right to privacy in the digital age (A/HRC/27/37) [40].
[68] Szabó and Vissy v Hungary, European Court of Human Rights, Application no. 37138/14 (2016) [86]. See also Roman Zakharov v Russia, European Court of Human Rights, Grand Chamber, Application no. 47143/06 (2015) [234] and Klass and Others v Germany, European Court of Human Rights, Plenary Court, Application no. 5029/71 (1978) [57].
[69] Roman Zakharov v Russia, European Court of Human Rights, Grand Chamber, Application no. 47143/06 (2015) [287].
[70] Roman Zakharov v Russia, European Court of Human Rights, Grand Chamber, Application no. 47143/06 (2015) [287]. See also Klass and Others v Germany, European Court of Human Rights, Plenary Court, Application no. 5029/71 (1978) [58] and Szabó and Vissy v Hungary, European Court of Human Rights, Application no. 37138/14 (2016) [86].
[71] See Case of Big Brother Watch and Others v The United Kingdom, European Court of Human Rights, Application nos. 58170/13, 62322/14 and 24960/15 (2019) [320]. See also Roman Zakharov v Russia, European Court of Human Rights, Grand Chamber, Application no. 47143/06 (2015) [233]; Klass and Others v Germany, European Court of Human Rights, Application no. 5029/71 (1978) [55]; Szabó and Vissy v Hungary, European Court of Human Rights, Application no. 37138/14 (2016) [77].
[72] Roman Zakharov v Russia, European Court of Human Rights, Grand Chamber, application no. 47143/06 (4 December 2015) [233]. See also Klass and Others v Germany, European Court of Human Rights, application no. 5029/71), (6 September 1978) [55]: ‘The rule of law implies, inter alia, that an interference by the executive authorities with an individual’s rights should be subject to an effective control which should normally be assured by the judiciary, at least in the last resort, judicial control offering the best guarantees of independence, impartiality and a proper procedure’.
[73] Szabó and Vissy v Hungary, European Court of Human Rights, application no. 37138/14 (6 June 2016) [77].
[74] United Nations Special Rapporteur on the right to privacy, Draft Legal Instrument on Government-led Surveillance and Privacy, Version 0.6 (2018), p. 16.
[75] UN Committee on Human Rights, Concluding observations on the fourth periodic report of the United States of America, CCPR/C/USA/CO/4 (2014) [22]. See also UN Special Rapporteur on the right to privacy, Draft Legal Instrument on Government-led Surveillance and Privacy, Version 0.6 (2018), p. 16.
[76] Telecommunications (Interception and Access) Act 1979, sections 11A, 11B and 11C; Australian Security Intelligence Organisation Act 1979, section 27A.
[77] Szabó and Vissy v Hungary, European Court of Human Rights, Application no. 37138/14 (2016) [77].
[78] Subsections 65(3)–(6) of the Telecommunications (Interception and Access) Act 1979 set out exceptions and qualifications to the authorisation to communicate information in subsections 65(1) and (2).
[79] In accordance with subsections 65(1) or 137(1) or in accordance with an approval given under subsections 65(2) or 137(3) of the Telecommunications (Interception and Access) Act 1979.
[80] Schedule 3, item 2, proposed paragraph 65(2)(a) and item 5, proposed paragraph 137(3)(c).
[81] Schedule 3, item 2, proposed paragraphs 65(b) and (c) and item 5, proposed paragraph 137(3)(d) and (e). The explanatory memorandum on p. 33. clarifies that the Attorney-General's ability to determine the purposes for which such information may be used includes the ability to limit the purposes for which such information may be used.
[82] International Covenant on Civil and Political Rights, article 17.
[83] International Covenant on Civil and Political Rights, article 6(1) and Second Optional Protocol to the International Covenant on Civil and Political Rights, article 1.
[84] Second Optional Protocol to the International Covenant on Civil and Political Rights.
[85] UN Human Rights Committee, Concluding observations on the fifth periodic report of Australia, CCPR/C/AUS/CO/5 (2009) [20]. The UN Human Rights Committee further raised its concern that Australia lacks 'a comprehensive prohibition on the providing of international police assistance for the investigation of crimes that may lead to the imposition of the death penalty in another state', and concluded that Australia should take steps to ensure it 'does not provide assistance in the investigation of crimes that may result in the imposition of the death penalty in another State'.
[86] International Covenant on Civil and Political Rights, article 7; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[87] Szabó and Vissy v Hungary, European Court of Human Rights, Application no. 37138/14 (2016) [78].
[88] Szabó and Vissy v Hungary, European Court of Human Rights, Application no. 37138/14 (2016) [79].
[89] Szabó and Vissy v Hungary, European Court of Human Rights, Application no. 37138/14 (2016) [79].
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/AUPJCHR/2021/111.html