Telecommunications (Interception) Amendment (Stored Communications) Bill 2004

Last Updated: 26 Apr 2006

Update 26 Apr 2006: Protection of the Telecommunications (Interception and Access) Act 1979 will apply to "stored communications" (e.g. email, SMS and voice mail messages) when Schedule 1 of the Telecommunications (Interception) Amendment Act 2006 becomes operative, which is expected to be on or before 14 June 2006. For more information, see EFA's page about the 2006 Bill.

Update 8 Dec 2004: Federal Parliament has passed the 2004 Bill, which completely removes undelivered email, SMS and voice mail messages stored on service provider's equipment from the protections of the Telecommunications (Interception) Act 1979. Police and many other C'th and State government agencies have thereby been given new powers to intercept undelivered communications, including when investigating very minor suspected offences which was not previously permitted.

The Bill was passed, without amendment, by the Senate on 29 Nov 2004 and the House of Reps on 8 Dec 2004 and the Act became operative on 15 December 2004, the day after Royal Assent. The ALP withdrew the amendments they had tabled before the Federal election (which would have given effect to the Senate Committee recommendations) and voted with the Liberal/National Government to pass the Bill. The Greens and Democrats voted against the Bill.

The Bill was the Commonwealth Government's third attempt since early 2002 to amend the Telecommunications (Interception) Act 1979 ("the TI Act") in relation to email, SMS and voice mail messages. The stored communications provisions of this Bill are substantially the same as the proposed and rejected provisions of the TI Bill 2002.

Moreover, this Bill is even more objectionable than the 2002 proposal because it completely removes email, SMS and voice mail messages (stored communications) from the scope of the protection of the TI Act.

Contents:

Overview

The Telecommunications (Interception) Amendment (Stored Communications) Bill 2004, introduced into the House of Representatives on 27 May 2004, is the Commonwealth Government's third attempt since early 2002 to amend the Telecommunications (Interception) Act 1979 in relation to email, SMS and voice mail messages.

The first Bill, introduced in March 2002, sought to remove the protection from interception for delayed access messages. Those provisions were deleted by the government when it became clear they did not have sufficient support in the Senate. The second Bill, introduced in February 2004, sought to increase the protection for delayed access messages. Those provisions were deleted due to disagreement between the Attorney-General's Department (relying on the opinion of the Solicitor-General) and the Australian Federal Police (relying on the opinion of the C'th Director of Public Prosecutions) concerning the correct interpretation of the law.

The third (current) Bill, introduced in May 2004, not only reverts to substantially the same proposal as was rejected in 2002, but would remove even more of the existing protections from interception than the 2002 Bill would have.

The Bill would inappropriately change the long-established balance in telecommunications interception law between individuals' right to privacy and the needs of law enforcement agencies.

Under current law, an interception warrant is required to access the contents of email, SMS and voice mail messages that are temporarily delayed and stored during passage over the telecommunications system, (e.g. stored on an ISP's or telephone service provider's equipment pending delivery to the intended recipient), the same as is required to intercept a telephone call.

The Bill would remove the existing protection from interception for email, SMS and voice mail messages that have not been delivered to the intended recipient, thereby allowing government agencies (not only police), private investigation agencies, telephone companies and ISPs and other businesses to access such communications, without a warrant of any type.

Although the Commonwealth Government frequently cites enthusiasm for "technology neutral" laws, this Bill is certainly not. It treats email, SMS and voice mail telecommunications quite differently from facsimile and telephone call telecommunications.

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The Bill

Telecommunications (Interception) Amendment (Stored Communications) Bill 2004

  • Text of Bill (PDF 13 Kb)
  • Explanatory Memorandum (PDF 16 Kb)
  • Bills Digest No. 153
  • Minister's Second Reading Speech, 27 May 2004
    Extract:
    "Mr Ruddock [Attorney-General]- ...The act was therefore built around a core concept of communications passing over a telecommunications system.
    While this concept is technologically neutral, its application has proven more difficult to modern communications services-which I am sure you are familiar with, Mr Speaker-such as voice mail, email and SMS messaging. I must say that I am familiar with it but not fully up on it.
    ...
    The SPEAKER- I thank the Attorney-General for his unfounded vote of confidence in my electronic communications skills. Were it not for my children, he would find me electronically illiterate. In the absence of an SMS message to send to him, I call the member for Lilley to adjourn the debate."

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Detailed Analysis and EFA Submission

EFA's submission (including Executive Summary) to the Senate Legal & Constitutional Legislation Committee contains a detailed analysis of the Bill together with commentary on issues of concern to EFA.

EFA also presented oral testimony during the Committee's hearing on Thursday 1 July 2004 and subsequently responded to a Question on Notice.

(Prior to referral of the Bill to the Senate Committee, EFA prepared and distributed a Detailed Briefing Paper including Executive Summary on 3 June 2004. EFA subsequently identified additional issues which were also addressed in EFA's submission of 28 June 2004.)

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Senate Committee Inquiry

On 16 June 2004, the Senate referred the provisions of the Bill to the Senate Legal and Constitutional Legislation Committee for inquiry and report by 22 July 2004.

  • Committee web page: Inquiry into the Telecommunications (Interception) Amendment (Stored Communications) Bill 2004
  • Submissions to the Inquiry:
  • Public Hearing, Hansard Transcript [PDF 272Kb], Canberra, 1 July 2004
    (Witnesses: Electronic Frontiers Australia Inc, Australian Securities and Investment Commission ("ASIC"), Acting Federal Privacy Commissiner, Australian Federal Police and the Attorney-General's Department.)
  • Committee Report and Recommendations [PDF 220Kb], 22 July 2004.
    The majority of the Committee (Coalition and ALP) recommended:
    "The Committee recommends that the Bill be amended to require that a review of the Telecommunications (Interception) Act 1979 be undertaken and to specify that this review consider the issue of whether stored communications should be exempt from the Act. It should also require that the review publicly seek submissions and make its findings public. Subject to this amendment the Committee recommends that the Bill proceed."
    The minority of the Committee (Democrats) stated in a dissenting report that The Australian Democrats do not share the majority's view that the Bill should be passed.

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Status of the Bill

21 June 2004: The Bill was passed by the House of Representatives without the support of the Greens. (Michael Organ MP (Greens) spoke against the Bill during the debate on 17 June 2004).

29 July 2004: The Bill is in the Senate pending debate. The next sitting period of the Senate commences on 3 August 2004.

Aug-Nov 2004: The Bill lapsed when Parliament was dissolved prior to the Federal election (held on 9 October) and was reintroduced into the Senate after the election.

29 Nov 2004: The Bill was passed by the Senate without any amendments. Prior to the election, the ALP had tabled amendments to give effect to the recommendations made by the Senate Committee. However, after the election the ALP withdrew their amendments and voted with the Liberal/National Government to pass the Bill. Hence, the Bill was passed without even the amendments recommended by the Senate Committee. The Greens and Democrats voted against the Bill.

8 Dec 2004: The Bill was passed by the House of Representatives.

14 Dec 2004: Royal Assent.

15 Dec 2004: The Act commenced operation.

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