Telecommunications (Interception and Access - Independent Commission Against Corruption of South Australia) Declaration 2023 [2023] AUPJCHR 109 (18 October 2023)

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Telecommunications (Interception and Access — Independent Commission Against Corruption of South Australia) Declaration 2023^[232]

FRL No.	F2023L01128
Purpose	Declares the Independent Commission Against Corruption of South Australia as an interception agency for the purposes of the Telecommunications (Interception and Access) Act 1979
Portfolio	Attorney-General
Authorising legislation	Telecommunications (Interception and Access) Act 1979
Disallowance	15 sitting days after tabling (tabled in the House of Representatives and the Senate on 4 September 2023. Notice of motion to disallow must be given by 16 November 2023 in the House and by 9 November 2023 in the Senate)[233]
Right	Privacy

Declaration as an interception agency

1.104 This legislative instrument declares the Independent Commission Against Corruption of South Australia (ICAC SA) an interception agency for the purposes of the Telecommunications (Interception and Access) Act 1979 (the Act).^[234]

1.105 This means that the ICAC SA may apply for telecommunication interception warrants under Part 2-5 of the Act.^[235] These warrants permit interception of communications passing over a telecommunications systems (including listening to or recording, by any means, such a communication without the knowledge of the person making the communication).^[236] An issuing judge or tribunal member may grant a warrant where they are satisfied that information that would be likely to be obtained would be likely to assist in connection with the investigation by the agency of a serious offence.^[237]

International human rights legal advice

Right to privacy

1.106 Authorising the ICAC SA to apply for and execute telecommunications interception warrants, which allow the covert interception of private communications, engages and limits the right to privacy.

1.107 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.^[238] It also includes the right to control the dissemination of information about one's private life. The right to privacy may be permissibly limited where the limitation seeks to achieve a legitimate objective, is rationally connected to (that is, effective to achieve) that objective, and is a proportionate means by which to achieve it.

1.108 The statement of compatibility identifies that this measure engages and limits the right to privacy.^[239] It states that the measure addresses the investigation and prosecution of serious crime and corruption. This is a legitimate objective for the purposes of international human rights law, and the facilitation of telecommunications interception would appear to be rationally connected to (that is, effective to achieve) that objective.

1.109 A key aspect of whether a limitation on a right is permissible is whether the limitation is proportionate to the objective being sought. In this respect, it is necessary to consider whether: a proposed limitation is sufficiently circumscribed and accompanied by sufficient safeguards; whether any less rights restrictive alternatives could achieve the same stated objective; and whether there is the possibility of oversight and the availability of review.

1.110 The statement of compatibility states that interception of telecommunications will only be available to the ICAC SA in relation to the investigation of serious offences, and only where a judge or tribunal member has issued a warrant.^[240] This assists in the assessment of whether the warrant regime is itself sufficiently circumscribed. However, it does not provide a complete answer as to whether Chapter 2 of the Act (dealing with interception of communications) constitutes a proportionate limit on the right to privacy. In this regard, the statement of compatibility states that any information collected by the ICAC SA may only be used 'for defined purposes and purposes connected with the investigation of serious offences',^[241] but does not articulate what those purposes are, meaning the potential breadth of use is not clear. As to how long information may be retained, the statement of compatibility states that communications are destroyed where the chief officer of the agency is satisfied that the record is no longer required for a purpose permitted by the legislation. However, it does not explain what these purposes are, and whether the requirement to destroy records is subject to a mandatory maximum time period, for example. The statement of compatibility also states that persons affected by an interception warrant have relevant judicial avenues through which to challenge the validity of the interception and the use of any intercepted communications. It also states that the ICAC SA is subject to stringent recordkeeping and reporting obligations.^[242] However, the safeguard value of these mechanisms is not clear noting, in particular, that judicial avenues for review will be of no use when a person is not made aware that their private communications are subject to interception.

Committee view

1.111 As the committee has noted on numerous occasions, the Telecommunications (Interception and Access) Act 1979 was enacted prior to the establishment of the committee, and the corresponding requirement that a statement of compatibility with human rights with respect to the Act be drafted.^[243] As such, the Act has not, as a whole, been reviewed by the committee for compliance with Australia's human rights obligations. Of those specific powers in the Act that have been reviewed by the committee, the committee notes it has previously raised concerns as to the compatibility of a number of these powers with human rights, particularly the right to privacy.^[244]

1.112 As such, the committee considers that it is not able to conclude that declaring a body to be an interception agency, and thereby able to intercept private communications, constitutes a permissible limit on the right to privacy.

Suggested action 1.113 The committee recommends that a foundational assessment of the human rights compatibility of the Telecommunications (Interception and Access) Act 1979 be conducted by the Attorney-General's Department.

1.114 The committee draws these human rights concerns to the attention of the Attorney-General and the Parliament.

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^[232] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Telecommunications (Interception and Access — Independent Commission Against Corruption of South Australia) Declaration 2023, Report 11 of 2023; [2023] AUPJCHR 109.

^[233] In the event of any change to the Senate or House's sitting days, the last day for the notice would change accordingly.

^[234] Pursuant to section 34 of the Act. The Independent Commission Against Corruption South Australia was formerly known as the 'Independent Commissioner Against Corruption South Australia' and was previously declared to be an interception agency pursuant to the Telecommunications (Interception and Access—Independent Commissioner Against Corruption of South Australia) Declaration 2013 [F2013L01146]. Item 4 of this legislative instrument revokes that earlier declaration.

^[235] Telecommunications (Interception and Access) Act 1979, section 39. A court or the Administrative Appeals Tribunal may authorise a telecommunications interception warrant. Most applications must be made in writing, but urgent applications may be made by telephone (see, section 40).

^[236] Telecommunications (Interception and Access) Act 1979, section 6. Section 48 also provides that an interception warrant may authorise entry on to physical premises (if it would be impracticable or inappropriate to intercept communications otherwise than by use of equipment installed on those premises).

^[237] Telecommunications (Interception and Access) Act 1979, section 46. 'Serious offence' is defined in section 5D and includes a number of offences.

^[238] International Covenant on Civil and Political Rights, article 17.

^[239] Statement of compatibility, p. 4. The statement of compatibility is substantially the same as that which accompanied the Telecommunications (Interception and Access – Law Enforcement Conduct Commission of New South Wales) Declaration 2017 [F2017L00533]. The committee raised privacy concerns in relation to that legislative instrument in connection with concerns regarding the compatibility of the Act itself. See, Parliamentary Joint Committee on Human Rights, Report 7 of 2017 (8 August 2017), pp. 30-33.

^[240] Statement of compatibility, pp. 4-5.

^[241] Statement of compatibility, p. 5.

^[242] These include reporting obligations set out in the Telecommunications (Interception) Act 2012 (South Australia), which require the regular inspection of records and annual reporting to the Attorney-General.

^[243] Human Rights (Parliamentary Scrutiny) Act 2011, section 8.

^[244] See, for example, Parliamentary Joint Committee on Human Rights, Report 5 of 2022 (20 October 2022), National Anti-Corruption Commission Bill 2022 and National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022, pp 7-31.