A review into Australia's intelligence community has recommended comprehensive reform of electronic surveillance laws, one that would repeal existing powers and combine them to avoid duplication, contradictory definitions, and any further ad hoc amendments to the existing three Acts.
Electronic surveillance powers enable agencies to use electronic or technical means, which would otherwise be unlawful, to covertly listen to a person's conversations, access a person's electronic data, observe certain aspects of a person's behaviour, and track a person's movements. Currently, these powers are contained within the Telecommunications (Interception and Access) Act 1979 (TIA Act), the Surveillance Devices Act 2004 (SD Act), and the Australian Security Intelligence Organisation Act 1979 (ASIO Act).
Parts of the Telecommunications Act 1997 and the Criminal Code Act 1995 are also directly relevant when considering these powers.
Each Act requires agencies to meet thresholds before accessing these powers and requires external authorities, such as judges, Administrative Appeals Tribunal (AAT) members, or the Attorney-General as is the case of ASIO, to approve the use of powers.
In 2017-18, Commonwealth, state, and territory law enforcement agencies obtained 3,524 interception warrants, 828 stored communications warrants, 802 surveillance device warrants, 23,947 prospective data authorisations, and 301,113 historic data authorisations. ASIO likewise obtained interception, surveillance device, and computer access warrants.
"In short, we conclude that the legislative framework governing electronic surveillance in Australia is no longer fit for purpose," the review said. "The SD Act was enacted 15 years ago; the ASIO Act and TIA Act are 40 years old; and the foundations of the surveillance framework date back to decisions made by Prime Minister Chifley in 1949."
It said that after 40 years of continued amendments, problems with the framework have accumulated.
"The framework contains a range of highly