other aspects for Commonwealth agencies

This page highlights other legislation affecting federal government agencies, in particular measures that serve to erode or enhance privacy in the digital environment.

It covers -

• medical research
• telecommunications
• archival data
• spent convictions
• other legislation
• electoral legislation
• financial transactions
• surveillance

The Commonwealth privacy regime is often characterised exclusively in terms of the 1998 Privacy Act. That enactment is significant but it is important to recognise that the evolution of privacy legislation in Australia has involved creation of a range of other legislation and codes of practice administered by several agencies.

Two prominent enactments are the Telecommunications Act 1997 and Telecommunications (Interception) Act 1979 which impinge on internet service providers, content hosts and users.

     Medical Research

The Privacy Act also provides that the National Health & Medical Research Council (NHMRC) may issue guidelines for the protection of privacy in the conduct of medical research. 

The first guidelines (PDF) were released in 1995 following the NHMRC information paper Aspects of Privacy in Medical Research. They allow disclosure by Commonwealth agencies, as long as the medical research is conducted in accordance with the guidelines, and prescribe procedures for researchers and institutional ethics committees. 

     Telecommunications

The Telecommunications Act 1997 (here) includes provisions dealing with the privacy of personal information held by carriers, carriage service providers and others. 

Those provisions embrace the development of voluntary industry codes and standards relating to privacy; the Privacy Commissioner must be consulted on any privacy codes and in principle breaches would be enforced by the Australian Communications Authority (ACA).

The Telecommunications (Interception) Act 1979 (here) is one of several federal enactments dealing with surveillance; several states have corresponding laws.

Part 14 of the Telecommunications Act 1997 obligates ISPs and other carriage service providers to give representatives of Commonwealth and StateTerritory governments such help (including information about internet users) as is "reasonably necessary" for the enforcement of the criminal law, or the enforcement of laws imposing pecuniary penalties or the protection of the public revenue.

Part 15 of the Act 1997 obligates carriage service providers to ensure that their network is able to intercept a communication passing over it in accord with a warrant issued under the Telecommunications (Interception) Act 1979.

Part 13 of the Telecommunications Act 1997 makes it an offence for an ISP and its employees to use or disclose any information or document which comes into its possession in the course of its ISP business, where the information relates to the contents or substance of a communication carried by the ISP (delivered or not); or carriage services supplied, or intended to be supplied, by the ISP; or the affairs or personal particulars of another person.

Exceptions to the prohibition on disclosure of customer information include where the disclosure:

• is reasonably necessary for the enforcement of the criminal law or the protection of the public revenue
• is made to ASIO for the performance of its functions
• is required or is otherwise authorised under a warrant or under law.

Customer information that an ISP may be required to disclose includes the content of nominated communications and the "Identity, Source, Path and Destination of nominated Internet services", including

• customer registration details
• destination and origin email addresses for (user) target communications
• calling line identification (for user access links)
• geographical location of a target service
• network/traffic related data
• log files (for example, back up tapes showing details of a subscriber's sessions, including files received).

The Commonwealth Telecommunications (Interception) Act 1979 prohibits interception of telecommunications except in specified circumstances that essentially relate to maintenance of the telecommunications system or pursuant to an interception warrant.

Such warrants may be issued for national security and law enforcement purposes. Warrants for law enforcement purposes may be issued to various agencies regarding investigation of

murder, kidnapping, and narcotics offences (Class 1 offences)

Class 2 offences - punishable by imprisonment for life or a period of at least 7 years - and involving for example serious personal injury, extortion, drug or armament trafficking, serious fraud, tax evasion, currency violations, bribery or corruption of government officers, bankruptcy violations, harbouring criminals or a sexual offence against a person under 16.

Warrants in relation to national security are issued to ASIO, discussed in our surveillance & identification profile. Background about interception powers and practices is provided by the Australian Communications Authority's briefing (PDF) on Internet Service Providers and Law Enforcement & National Security.

     Archival Data

The Commonwealth Freedom of Information Act 1982 (FOI) and associated Archives Act 1983 (AA) includes some provisions relating to personal data.

The Australian Society of Archivists (ASA) has sought exemption for archival institutions from provisions of the 2001 Privacy Act - details are here (PDF).

     Spent Convictions

The Commonwealth Spent Convictions Scheme came into force in 1990 through the Crimes Legislation Amendment Act 1989, part of amendments to the Crimes Act 1914 (Crimes) concerned with offences against the national government, and regulations under the Human Rights & Equal Opportunity Commission Act 1986. 

It allows individuals to disregard some criminal convictions after 5 to 10 years, with protection against unauthorised use and disclosure of that information. It covers convictions for minor federal, state and foreign offences, with the protections available varying according to which type of offence (federal, state or foreign) gave rise to the conviction. The scheme also covers pardons and quashed convictions.

The Scheme's principles are discussed in the Australian Law Reform Commission's 1987 Spent Convictions report and Nigel Waters' paper (PDF) on Implications for Privacy Laws. The ALRC report had identified concerns regarding accessibility of information about criminal records, unfair/unreasonable discrimination against past offenders and legal disabilities suffered by former offenders.

It suggested that failure to address those concerns would "deprive society of the talents and energies of offenders and to encourage offenders to stay trapped in a vicious circle of crime, prison and more crime".

The report noted countervailing public interest concerns, including claims of freedom of expression and information ("barriers should not be placed on the availability, dissemination and use of information without adequate justification"), the need of law enforcement agencies to use the very best methods available to prevent and detect criminal activity, the value of being able to make the most informed judgements possible about admission to professional practice, and efficient and fair administration of justice.

The 2004 AIC report Attitudes of employers, corrective services workers, employment support workers, and prisoners and offenders towards employing ex-prisoners and ex-offenders and 2005 federal Human Rights & Equal Opportunity Commission inquiry into Discrimination in employment on the basis of criminal record are also of interest in considering the federal and state/territory spent conviction and offender register regimes.

     Other Legislation

Other Commonwealth legislation includes

the Australian Security Intelligence Organisation Act 1979 (ASIO) and Intelligence Services Act 2001 (here)

Income Tax Assessment Act (Tax)

Public Order (Protection of Persons & Property) Act 1971

     Electoral Legislation

The federal regime seeks to balance needs for access to electoral information such as electoral rolls (in particular by members of parliament) with the privacy of individuals.

The key legislation is the Commonwealth Electoral Act 1918 (here), which has been amended to reflect practice since initial enactment. That amendment recognises, for example, that direct marketers were using the federal electoral rolls as the basis for mail lists and increasingly sophisticated market profiling. Particular enterprises had thus purchased and scanned a copy of the roll for each electorate. Amendment also reflects concerns that government agencies were leveraging the rolls in non-commercial datamatching.

Recent restrictions and authorisations include -

Commonwealth Electoral Legislation (Provision of Information) Act 2000 authorises past unlawful use of elector information provided to prescribed authorities (particular Commonwealth government agencies and authorities) in electronic format.

Commonwealth Electoral Amendment Act (No. 1) 2000 specifically allows provision of a wide range of elector information, in addition to name and address information, to Members of the House of Representatives, Senators and federally registered political parties. It also specifically allows provision of age-range extracts from the Roll for use in approved medical research and public health screening programs. It requires the Australian Electoral Commission to include in its Annual Report details of those to whom it has provided elector information in electronic formats and the purposes for which that information was provided

Commonwealth Electoral & Referendum Amendment Act (No. 1) 1999 (here) restricts commercial use of electoral roll data and increases penalties for unauthorised disclosure of elector information provided on tape or disk. It allows for provision of date of birth and salutation details of electors to Members, Senators and registered political parties. It allows for use of elector information, by Members of the House of Representatives, Senators and registered political parties for "research regarding electoral matters".

     Financial transactions

The federal Financial Transaction Reports Act 1988 (FTR), originally enacted as the Cash Transaction Reports Act 1988, involves mandatory reporting by a wide range of financial services providers (including banks, bullion dealers and solicitors), the gambling industry and others.

That reporting involves customer identification - founded on the 100 Points scheme discussed in more detail elsewhere on this site - and is used in action against welfare fraud, tax evasion, money laundering and other offences. Austrac, a federal government agency, provides information clearinghouse and data analysis services, with financial transaction reports information being provided to a range of federal and state/territory law enforcement and revenue agencies.

The FTR also encompasses a requirement that travellers to/from Australia report all currency of $10,000 or more brought into or taken out of Australia.

     Surveillance

Use of aural surveillance devices by Commonwealth agencies in the investigation of Commonwealth drug importation offences is regulated by the Customs Act 1900. Use of aural surveillance devices by the Australian Federal Police in investigation of some non-narcotics offences is regulated by the Australian Federal Police Act 1979.

The federal Surveillance Devices Act 2004 (SDA) allows law enforcement agencies to obtain a warrant for use of software surveillance technologies, including systems that track and log keystrokes. The law applies to the Australian Federal Police and to state police investigating Commonwealth offences.

It covers surveillance for offences carrying a maximum sentence of three years and thus has a broader ambit than the Telecommunications Interception Act, concerned with warrants for investigation of offences carrying a maximum jail term of seven years or more. A warrant can be obtained if the agency has reasonable grounds to suspect an offence had been or might be committed and a surveillance device was necessary to obtain evidence. The legislation features secrecy provisions making it an offence to publish information on an application for, or the existence of, a surveillance warrant.

We have included a map of Commonwealth and New Zealand 'surveillance' agencies such as ASIO, DSD and GCSB in a complementary profile, along with comments about initiatives such as ECHELON.

   next page (the 2000 Commonwealth Act)