The Office of Australian Information Commissioner has warned that potential gaps exist in the privacy safeguards in the Federal Government’s proposed Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010.
Speaking at a senate hearing into the bill — which seeks to enable greater cooperation, assistance and information sharing within Australia’s law enforcement and national security agencies — Privacy Commissioner, Timothy Pilgrim, said the public’s national security interests needed to be balanced with its privacy interests.
“At the outset I would note that the application of the Privacy Act 1988 to those Australian intelligence agencies, Australian government law enforcement agencies and state law enforcement agencies covered by the proposals in the bill varies, thereby leading to some potential gaps in privacy protection,” Pilgrim said.
“The Office’s interest is in ensuring that consistent application of sound privacy principles in relation to these proposals, coupled with oversight by the appropriate regulator are necessary.”
By way of example, Pilgrim said potential privacy gaps existed in the handling of personal information obtained through an interception warrant.
“The office suggests developing guidelines on personal information practices for law enforcement agencies which may assist in addressing these issues,” he said.
“Similarly it may also be appropriate for the Attorney General's Department to consider reviewing the guidelines issued under section 8A of the Australian Security and Intelligence and Organisation Act.”
The Office has also made recommendations related to the disclosure of information by telecommunications organisations related to missing persons.
“This reflects the Office’s view that sound privacy protection should apply when authorising the disclosure of telecommunications data for purposes other than investigating criminal activity,” he said.
“In particular, the Office has suggested introducing a set of binding rules and regulations to apply to the handling of telecommunications data and developing detailed guidance in the context of investigating missing persons.”
The Office also recommended the establishment of a privacy framework to support the privacy sharing arrangements set out in Schedule 6 — which relates to co-operation, assistance and communication between intelligence agencies — of the bill to overcome any potential privacy gaps.
Australian Privacy Foundation calls for stronger measures
The relatively mild proposals of the Privacy Commissioner stand in stark contrast to views held by the Australian Privacy Foundation (APF) which in October, in its submission on the bill, wrote that it had the “most serious concern” about the Bill.
“Its effect is to destroy the hitherto carefully maintained separation between the roles of national security and law enforcement,” the submission reads. “The APF is also very concerned that major changes have been presented in such a manner as to mislead the public into thinking that they are merely fine tuning.
“The [Constitutional Affairs Committee], and the Australian community, should instead see the amendments for what they really are – a wholesale demolition of some important barriers that strike an appropriate balance between various public and private interests.
According to the APF, the bill comes close to giving a very wide range of enforcement agencies access to the same “extraordinary powers” that have rightly been limited, to date, to a few specialised agencies with narrow and targeted functions.
“The Australian Privacy Foundation accepts that some marginal changes may be justified from time to time to recognise new environments and threats, but the changes embodied in these amendments go far beyond that marginal adjustment and should be rejected,” the submission reads.
“The legitimate objectives of greater cooperation can, in our view, be achieved in other ways, in specific cases and investigations. The Bill dangerously conflates significant distinctions between national security, national intelligence, criminal law enforcement and wider enforcement functions.
Responding to the submission, Pilgrim said his office had not failed to perform its statutory duty to protect public privacy.
“…It is a free country and they are entitled to have their opinion on how we undertake our statutory functions in the organisation and I as privacy commissioner, but I think we have a statutory responsibility to provide comment on bills and enactments and we have done that…” he said.