Review of the regulation of access to communications
Since 1994 there have been five major reports dealing with telecommunications interception:
The Barrett Review
In 1994 Mr Pat Barrett (then a Deputy Secretary in the Department of Finance and Administration and later Commonwealth Auditor-General) conducted a review into the long term cost effectiveness of telecommunications interception. The Barrett Review formed the basis of new telecommunications funding arrangements which were introduced in 1995 and replaced by new arrangements in 1997. Mr Barrett also recommended a further review of telecommunications interception after deregulation of the telecommunications market in 1997.
The Boucher Review
In 1999, Mr Dale Boucher, an Associate Member of the Australian Communications Authority (ACA), as it then was, and a former Australian Government Solicitor, conducted the further review foreshadowed in the Barrett Review. The review was carried out by the ACA pursuant to section 332R of the Telecommunications Act 1997.
The Boucher Review made a number of recommendations relating to the longer term cost-effectiveness of telecommunications interception arrangements. The Review stressed the importance of ensuring that interception must be available for all telecommunications services on the basis that the telecommunications carriers and the carriage service providers provide and fund the capability and that intercepting agencies must reimburse those costs on a ‘user pays’ basis.
The Ford Review
In 1999, Mr Peter Ford, a First Assistant Secretary of the Attorney General’s Department, made a number of recommendations which formed the basis of the 2000 amendments to the Telecommunications (Interception) Act 1979. The most significant of these amendments was the creation of a named person warrant regime, which permitted the issuing of a warrant that authorised the interception of multiple services used by the person of interest.
The Sherman Review
In 2003, Mr Tom Sherman AO, President of the ACT Legal Aid Commission, conducted a review following a recommendation of the Senate Legal and Constitutional Legislation Committee in its report on the provisions of the Telecommunications (Interception) Legislation Amendment Bill 2000. This Bill had implemented many of Mr Ford’s recommendations, particularly those including the creation of a named person regime. The Senate Committee recommended that a review be conducted on the operation of the named person regime within three years.
It was the general conclusion of the review that the named person warrant regime should continue and that the regulatory regime generally contains adequate safeguards and reporting mechanisms. In particular, the review found that the interception regime has a strong compliance culture which is well audited by the inspecting authorities.
The Blunn Review
In 2005, Mr Anthony Blunn AO, a former Secretary of the Attorney-General’s Department, conducted a review on issue of access stored communications, following an amendment that had been passed in late 2004.
The review found that the interception regime had proved remarkably robust in an era of revolutionary technological change. However, it recommended a series of amendments to ensure the ongoing effectiveness of the regime. In particular, these recommendations included:
- the development of overarching legislation concerning enforcement and national security access to telecommunications data,
- the maintenance of the distinction between interception and accessing communications that are stored,
- permitting interception based on the person with whom the target is likely to communicate,
permitting interception based on equipment used to intercept, and - the development of binding Australian standards for interception in the absence of applicable international standards.