Legal News & Analysis – Asia Pacific – Australia – TMT

New Anti-Terror Laws To Expand Computer Surveillance

 
On 1 October 2014, the House of Representatives passed the National Security Legislation Amendment Bill (No. 1) 2014 (Cth) (Bill), the first part of a suite of new legislation aimed at addressing the rising threat of terrorism. The Bill amends the Australian Security Intelligence Organisation Act 1979 (Cth) and the Intelligence Services Act 2001 (Cth) to, among other things, improve the Australian Security Intelligence Organisation’s (ASIO‘s) intelligence-gathering powers.

 
The changes strengthen ASIO’s ability to conduct surveillance activities. The Bill will allow ASIO to obtain information from a number of computers, including whole computer networks, under just one access warrant. It will also allow ASIO to use third-party computers to gain access to a “target computer”. Consistent with its powers in relation to target computers, it will also give ASIO the power to add, copy, delete or alter data in thirdparty computers. The Explanatory Memorandum to the Bill seeks to quell concerns over intrusions of privacy, by stating that the expanded powers of ASIO are subject to “significant safeguards” such as “high thresholds” for the issuing of warrants, the requirement that the Minister issue warrants, and the independent oversight role of the Inspector-General of Intelligence and Security.

 
The Bill also criminalises the unauthorised disclosure of information relating to covert intelligence operations, imposing penalties of 5 or 10 years imprisonment with no provision for a public interest test.

• View the National Security Legislation Amendment Bill (No. 1) 2014 (Cth).

 
ACMA Issues Formal Warnings To Telcos

 
The Australian Communications and Media Authority (ACMA) has issued 39 telecommunications providers with formal warnings after they failed to comply with Telecommunications Consumer Protections Code (Code).

 
Under the Code, telcos that provide consumer services are required to lodge compliance documents with the compliance body, Communications Compliance, on an annual basis. The documents include Compliance Attestations endorsed by the CEO or a senior manager of the telco, and Customer Information Compliance Statements, which specify where customers can obtain key information required to be made public under the Code. The ACMA has issued the formal warnings as the body responsible for enforcing the Code after the 39 telcos failed to lodge the required documents by the 1 April 2014 deadline. In its media release, the ACMAhas indicated that whilst formal warnings are only issued for first-time offenders, some telcos have failed to lodge the necessary documents for a second time, and are accordingly the subject of ongoing investigations.

• View the Telecommunications Consumer Protections Code.
• View the ACMA’s media release.

 
Channel Nine Breaches Accuracy And Privacy Provisions

 
The Australian Communications and Media Authority (ACMA) has found that Queensland Television Channel’s (Channel Nine) A Current Affair program breached the Commercial Television Industry Code of Practice 2010 (Code) in two of its broadcasts which sought to expose the easy provision of medical certificates by certain medical practitioners.

 
The first segment, aired on 2 October 2013, showed producers of Channel Nine impersonating patients andobtaining medical certificates for being “tired” and wanting “a day off work”. It involved the use of a hidden camera to record to the appointments. Several weeks later, Channel Nine aired a follow up segment in response to complaints by two of the doctors featured in the earlier exposé, providing the audience with extended footage.

 
The ACMA found that Channel Nine breached accuracy provisions of the Code by editing the footage to suggest that, among other things, the only reason for providing the medical certificate was tiredness when, in fact, one of the reasons raised was stress, which could indicate legitimate symptoms of depression. In addition to this, the ACMA also found that Channel Nine breached the privacy provision of the Code by causing one of the doctors featured in the broadcast to be identified. Although Channel Nine pixelated the doctor’s face, it did not disguise his accent, clothing or mannerisms, and filmed his consultation rooms in sufficient detail such that a viewer, familiar with the doctor, could deduce the doctor’s identity. The use of a hidden camera to record the appointment was also considered to be an “invasion of seclusion of a medical consultation in which sensitive personal health matters may be discussed”. This invasion of privacy could not be justified on public interest grounds since the medical certificates were issued for bona fide reasons.

 
In response to the investigation’s findings, Channel Nine has removed the relevant segments from its website, provided links to the ACMA report and included the matter in training materials for its staff.

• View a copy of ACMA’s investigation report.

For further information, please contact:

Gordon Hughes, Partner, Ashurst
[email protected]

Ashurst TMT Practice Profile in Australia