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Legal and Constitutional Affairs References Committee - 26/09/2014 - Comprehensive revision of the Telecommunications (Interception and Access) Act 1979

GLEESON, Ms Janine, Deputy Public Interest Monitor, Public Interest Monitor Victoria

SMITH, Ms Joanne Lynne, Deputy Public Interest Monitor, Public Interest Monitor Victoria

[10:04]

CHAIR: I now welcome representatives of the Public Interest Monitor of Victoria. Thank you both for talking to us today. The committee has received a submission from you as submission 17. Do you wish to make any amendments or alterations to your submission?

Ms Smith : No, thank you.

CHAIR: The Senate has resolved that an officer of a department of the Commonwealth or of a state shall not be asked to give opinions on matters of policy, and shall be given reasonable opportunity to refer questions asked of the officer to superior officers or to a minister. This resolution prohibits only questions asking for opinions on matters of policy; it does not preclude questions asking for explanations of policies or factual questions about when and how policies were adopted. I invite you to make a brief opening statement before we go to questions.

Ms Smith : Thank you for the opportunity to attend before the committee and speak to our submission. Janine Gleeson and I appear on behalf of our principal, Mr Brendan Murphy QC, and the office of the Public Interest Monitor for Victoria. The Public Interest Monitor Act 2011 created the offices of the Principal Public Interest Monitor and deputy public interest monitors. The Public Interest Monitor Regulations 2013 commenced operating on 10 February 2013. Mr Murphy QC was appointed the Principal Public Interest Monitor on 18 September 2012 for a period of three years. At the time of his appointment Mr Murphy was a barrister of over 40 years standing. Janine Gleeson and I were appointed as full-time deputy public interest monitors for a term of three years on 19 December 2012. At the time of her appointment Janine was a barrister and had also previously been a police prosecutor in Victoria. At the time of my appointment, or immediately prior to it, I was employed by the Australian Crime Commission as a regional legal manager and I was also a solicitor at the Office of Public Prosecutions in Victoria. There are also two barristers who have been employed as part-time deputy public interest monitors, David Starvaggi and Darren Bracken, who were both appointed on 15 May 2013. It is the mission of the Public Interest Monitor to:

Represent the public interest and provide greater accountability in the collection of evidence from warrants and orders that intrude on the privacy and civil liberties of Victorian citizens.

The acts under which the Public Interest Monitor has functions are the Major Crime (Investigative Powers) Act 2004, the Surveillance Devices Act 1999, the Telecommunications (Interception) (State Provisions) Act 1988 and the Terrorism (Community Protection) Act 2003. Since coming into operation, a public interest monitor has been present at every hearing of a relevant application, either in person or via telephone during remote applications.

The Principal Public Interest Monitor has created standard operating procedures and distributed these to applicant agencies and issuing authorities. The standard operating procedures contain details as to the process to be adopted for making applications and also contain checklists to assist applicant agencies in the preparation of applications. These checklists highlight the legislative criteria that need to be addressed in affidavits. The process involves the applicant providing the Public Interest Monitor with the draft affidavit prior to matters being listed for hearing. To date, on most occasions the Public Interest Monitor has had questions and raised issues in relation to the applications. In the main these issues were dealt with in a satisfactory manner prior to the parties attending court or the AAT, thereby minimising the time required for actual hearings.

Although there is an oversight role under the Telecommunications (Interception and Access) Act post the issue of a warrant, in the form of reporting requirements, a public interest monitor performs the role of a contradictor prior to the issue of a warrant. A public interest monitor's role involves an impartial assessment of the content and sufficiency of the application; consideration of whether the warrant sought is the appropriate warrant, namely a service warrant as opposed to a named person warrant; and ensures that extremely important issues, such as privacy, are addressed in relation to the specific facts of the application rather than in a formulaic manner.

It is too late post the issue of a warrant for such matters to be tested, particularly when claims of public interest immunity are made by applicant agencies in relation to affidavits relied upon in support of such applications. Parties to a matter, both the prosecution and defence, may not be aware of any underlying issues with a warrant or lawfully intercepted information contained under that warrant and, as such, issues such as whether the lawfully intercepted information has been lawfully obtained and/or disseminated may not be tested.

Professor John McMillan, currently the Australian information Commissioner, gave evidence to this committee on 23 April 2014 about being strongly critical of warrant applications that merely tick the box in relation to privacy consideration without giving a proper explanation of how that issue was considered, during his time as the Commonwealth Ombudsman between 2003 and 2010. Although that criticism related to surveillance device warrants, it is equally applicable to TI warrants and also remains just as important today, particularly in the context of the increased threat to national security and the use of intrusive investigative tools to gather evidence and intelligence about such activities.

CHAIR: Thank you. Ms Gleeson, do you have anything to add at this stage?

Ms Gleeson : No, I do not have anything to add.

CHAIR: Thanks very much for appearing today. I understand that you also recommend that the Commonwealth establish an office at a Commonwealth level that would fulfil a similar role?

Ms Smith : Yes.

CHAIR: Okay. Is it also the case that a PIM exists in the Queensland context?

Ms Gleeson : In Queensland.

CHAIR: That has been operating for a little longer though, hasn't it?

Ms Smith : Yes.

Ms Gleeson : It has.

CHAIR: By way of overview, maybe could you evaluate for us whether you have enough case history to suggest that the number of warrants that are applied for are steady? Are they going up? Are they going down? Does the existence of a public interest monitor deter applications for warrants in the first place, or simply improve the quality of them when they come across your desk?

Ms Smith : The number of applications initially seemed to have reduced once we commenced operation. There were a larger number of applications prior to the public interest monitor coming into being. Whether that is as a result of us commencing operation or whether that is as a result of operational matters that are occurring, that cannot be determined. I do not think it has reduced applications any further, and it seems to be that the numbers over the last couple of years are consistent.

Ms Gleeson : Yes.

CHAIR: Okay. It has not cut them in half or anything silly like that? There has not been a steep decline or anything?

Ms Smith : From the time that we first commenced operation, the number of applications prior to the public interest monitor commencing was greater. It did reduce. But over the period of time that we have been in operation it has remained steady.

CHAIR: So, it is the two of you—and did you say there were two barristers?

Ms Smith : There is the Principal Public Interest Monitor, who is Mr Brendan Murphy QC. He was formerly a barrister. And there are also two public interest monitors who have been appointed deputies. They have been appointed on a part-time basis.

CHAIR: Is there secretarial support, or is that basically the whole outfit?

Ms Smith : We have two secretarial support people as well.

CHAIR: So it is not a huge unit. Do you want to estimate for us if it slows the issuing of a warrant by a material amount, having that extra check and balance in the process?

Ms Smith : Necessarily, it has to slow it slightly—only because there is an additional step now that previously was not in existence. When the draft affidavit comes to us, we peruse it and then we get in contact with the applicant agency and raise any queries that we may have. That can delay the process, but it does not delay the process by a considerable amount. It is difficult to provide an estimate as to how long an application can be delayed by. It depends on whether further information is required and if that information has to be obtained from a different source. It is the efficiency—or the quickness, I guess—in which someone can actually get back to us with a response. But if there are no issues with an application then potentially it is a very quick process.

Senator JACINTA COLLINS: Just in light of the discussion we had with the previous witnesses—and I think you might have been here at the time—

Ms Smith : Yes.

Senator JACINTA COLLINS: Do you have any evidence that the traditional enforcement agencies are casting their net too widely in terms of the types of information that they are seeking to access?

Ms Smith : In relation to telecommunications data specifically, or—

Senator JACINTA COLLINS: Even more broadly, but that too.

Ms Smith : We do not have any involvement in relation to telecommunications data, but there is a threshold in the Telecommunications (Interception and Access) Act, that it needs to be reasonably necessary for the criminal law. So there is that threshold there. We cannot comment on whether the agencies would be casting the net too widely in terms of data.

With data: I did read the Attorney-General's submission and noted that there was a comment in relation to the identification of some data as traffic data and other data as account holder data, which seemed to be a useful distinction in how or what agencies you would actually permit to have access to what sorts of information. But insofar as our experience we cannot really comment on data, because we do not see anything to do with those particular requests.

Senator JACINTA COLLINS: Just while you are on that point about the distinction between account holder data and traffic data: we were discussing earlier this morning, too, the distinction between content and the envelope examples. Do you have a view on that point?

Ms Smith : It is difficult—I need to think about which hat I am wearing. It is important in terms of law enforcement being able to conduct their activities that they can access the metadata, if you like, and what you would term the traffic data. There is a higher degree of intrusiveness in accessing content data, and by content data I mean data that may be attained under a stored communications warrant and also under a section 46 or a 46A warrant. The nature of those conversations and those communications is generally, in my view, far more intrusive than what essentially traffic data would be or account holder data, which I would rate as even less intrusive than the traffic data.

Senator JACINTA COLLINS: Do you accept the point that in this day and age, and perhaps it is becoming even more so, the distinction is less relevant given the amount of inferences you can make from the type of metadata that can now be collected—for example, the GPS tracking of me on my mobile can pretty much tell you close to what content might tell you?

Ms Smith : It is still a valid distinction even although the lines are getting a little bit blurred, because even though we say that you can essentially track someone by virtue of the GPS in their mobile, you are making an assumption that that mobile is sitting in the person's hand at the time. It is natural to assume that most people will have their mobile telephone with them, but you cannot draw that assumption or that inference that it necessarily is you by virtue of the fact that your mobile is at a particular location.

CHAIR: I suppose there are plenty of opportunities to get it wrong. Can you distinguish for us, because there might be confusion at a federal level, your role as distinct from the role of an ombudsman?

Ms Gleeson : We have no role whatsoever after the warrant is issued—unlike the Queensland PIM, who does have an oversight role, our role is purely predetermination of the warrant.

CHAIR: And your job is to provide an element of contestability—

Ms Gleeson : Yes.

CHAIR: You are there to say 'Are you sure that is necessary and proportionate.' It is a fascinating check and balance. We did not hear anything when we heard the Australian Crime Commission and member agencies, which I think was on the first day of hearings. People spoke in quite a complimentary way about the operation of the PIM, which is why we are interested in taking this up at a Commonwealth level. But you do not think it necessarily impinges on the functions of the Commonwealth Ombudsman or the Information Commissioner?

Ms Gleeson : It just depends how the legislation is determined and whether they want the PIM to have an oversight role or not.

CHAIR: Or just that pre-contestability role—

Ms Gleeson : Yes—purely as a contradictor in the applications for warrants in the first instance.

Ms Smith : There is a benefit in having a Public Interest Monitor who does have an oversight function in relation to the monitoring and the compliance of the telecommunications or any legislative regime where these sorts of powers are available. Essentially if there is an issue that the public interest monitor determines or comes across, if you have that monitoring and compliance role you can also monitor how the product obtained from warrants is used. Essentially in our situation we do not have that particular monitoring or compliance role, so we are restricted in terms of any issues we perceive.

Ms Gleeson : I was having a quick read of the Queensland Public Interest Monitor's annual report, and she indicated that there had been a number of breaches from applicant agencies in relation to her oversight role. She reported a number of breaches of conditions that have been placed on warrants. I certainly concur with Joanne's comment—if we are involved in the issuing of a warrant that places conditions upon the applicant agency, we have no idea whether they are complying with those conditions.

CHAIR: So who is responsible for ensuring compliance in the state of Victoria?

Ms Gleeson : In Victoria, the Victorian inspectorate, which is a completely separate body which has purely an oversight role, in that they do have a minor investigative role in corruption activities of oversight bodies, if you like, but the only role they have in relation to us is inspecting our receipting procedures, as it were, but they oversee the police and other bodies, and, at the federal level, it is still the Ombudsman, yes.

CHAIR: So the Ombudsman would perform that function at a Commonwealth level; we do not have anybody providing that contestability at the outset here. So that is what is missing. I think this is where Senator Collins might have been heading: if it is good enough to have quite a high bar to jump over, for an agency to be able to access content and use these intrusive powers, including, in Victoria and Queensland, an office like yours, do you not see the logic in the argument in saying—if we set aside for the moment the distinction between content and noncontent, because I am increasingly finding it is not helpful—and surely you would concede, that being able to track the location of a handset everywhere you go and aggregate these masses of metadata about contact networks and financial records, and overlay that with social media metadata and with the locational material provided by IP addresses and handsets—do you see where the argument is going?—is actually extraordinarily intrusive as well; it is just that it is covered entirely outside the warranted framework.

Ms Smith : Yes.

CHAIR: Could you envisage a role for a public interest monitor in playing some kind of role in also testing and contesting authorisations for a warrantless metadata?

Ms Smith : Ah—

CHAIR: Maybe I am asking you for an opinion.

Ms Smith : I think so! There could be such a role, but it would be extremely voluminous in terms of: if warrants were actually issued or needed to be issued in relation to data—

CHAIR: Indeed.

Ms Smith : the imposition in terms of resources on bodies such as the AAT would also be quite significant.

CHAIR: I concede that, but in a way it just builds the point—that there are vast amounts of material flowing through. In my view, the oversight mechanisms for applying for material under warrant are robust; that has been tested. You add an extra, I think quite important, layer of robustness to it—it needs some tweaks, but it works moderately well—and we have this huge torrent of data effectively just completely circumventing it. I will not ask you to comment further; it would probably be somewhat improper. Senator Leyonhjelm, do you have any questions?

Senator LEYONHJELM: Yes. To be perfectly frank, I did not know you people existed.

Ms Gleeson : That's what we hope!

Senator LEYONHJELM: Can you tell me exactly the scope of your jurisdiction? I know you have made some preliminary comments, but they assumed a certain level of knowledge which I have not got. So, as to your jurisdiction, you are Victorian, but you have some relevance to Commonwealth law. How exactly do you do your job? Take me through it step by step, please.

Ms Gleeson : The acts under which we have a role to play are: obviously the Telecommunications (Interception and Access) Act, which you are dealing with here; the Victorian Surveillance Devices Act; the Victorian Major Crime (Investigative Powers) Act, which is compulsory examinations; and the Terrorism (Community Protection) Act.

Senator LEYONHJELM: Is that state or federal?

Ms Gleeson : They are all state. The TIA Act is the only act that is federal that we have a role to play in. Essentially, with any of the relevant applications, those bodies must contact us; we have a role to play. I think there is only one application that they can proceed with without contacting—sorry; there is one that they must, and they are under the terrorism act. But, essentially, our role is completely preliminary to the warrants being issued. We came about as a result of the government's perception that perhaps—well, it is probably better I do not comment too much, but it is in the second reading speech; the current Victorian government was of the view that perhaps—some warrants were a little bit easily obtained, and we obtained bipartisan support in the parliament.

Senator LEYONHJELM: How did you manage to get jurisdiction in relation to a Commonwealth law?

Ms Gleeson : Because there is a state telecommunications provision act that mirrors the federal act. It basically says that anything the federal act can do you can do in Victoria. That allows the Victorian state to apply for warrants under the federal act.

Senator LEYONHJELM: If one of the agencies with jurisdiction under those various acts that you named wants a warrant, before that warrant can be issued does it require your opinion or your approval?

Ms Gleeson : Neither, really. They have to provide us with all the documents that they intend to provide the court or tribunal. Our role is to test the sufficiency and grounds of any application under those acts. Once we have read the affidavit and looked at the material, obviously we would need to be certain that they have complied with all the legislative criteria. As Ms Smith indicated, of particular concern to us are issues of privacy. We then may consider that the threshold question has not been answered and that we do not believe there is sufficient material to justify the issuing of a warrant, and we will give an agency our reasons. It is up to them to go away and think about whether they need to put more together. As Ms Smith also pointed out, we try and do all of that before we get to court so that we are not running multi-day arguments or multi-hour arguments before courts and tribunals.

Senator LEYONHJELM: What incentive do these agencies have to take note of what you think?

Ms Gleeson : Probably the disincentive is that we will go along and make a submission that it is not appropriate to grant the warrant.

Senator LEYONHJELM: You would go to court and tell the court, 'I don't think the warrant should be issued'?

Ms Gleeson : Absolutely.

Senator LEYONHJELM: And they are aware of that?

Ms Gleeson : We make them very aware of it, yes.

Senator LEYONHJELM: That sounds like a useful process. So the issue that the IPA witnesses were referring to, of the authorised access regime, where there are no warrants involved, is entirely outside your jurisdiction. You have no involvement in that at all. To your knowledge, there is no oversight equivalent to yours in that process?

Ms Smith : No, there is not, as far as we are aware. It is all internal authorisation from an authorised officer of an enforcement agency. We also at this point in time do not have any role in relation to stored communications warrants. Whether it was an oversight in our act or whatever the reason, we are not quite sure, but we do not have a role in relation to stored communications warrants. One of our submissions is that the content of stored communications warrants is just as important as the content of telecommunications interception warrants.

Senator LEYONHJELM: Thank you.

CHAIR: How regularly would you knock one back?

Ms Smith : It is not really our role to knock one back.

CHAIR: I beg your pardon—I will rephrase that. How regularly would you advise a court that a warrant not be issued?

Ms Smith : It would depend. Generally, with discussion with the applicant agencies, the issues that we have can be raised and, in the main, they are rectified before you actually get to the tribunal. In the event that they are not, we go along and make the submissions as to whether it is the content or the appropriateness of issuing that particular warrant.

CHAIR: I think it is a really superb example of internal checks and balances at work. It is a very, very good model for the Commonwealth. You mentioned in your opening statement public interest immunity arguments being raised against affidavits. Does that mean that you do not get to see the supportive material?

Ms Smith : No, we do. What I was talking about in the opening statement was that, in the event that a matter gets to a prosecution stage—if any lawfully intercepted information makes its way onto a brief of evidence and is used in a prosecution—and the defence were to subpoena the warrant and try to get behind the face of the warrant to access the affidavit material, it is difficult for anyone to form a basis for actually trying to do that when they are not aware of any underlying issues that may have occurred in relation to the issue of the warrant or the harvesting of that lawfully intercepted information.

CHAIR: Thank you both very much for coming in this morning. It has been really instructive.

Proceedings suspended from 10 : 30 to 10 : 51