The internet was introduced to Australia in the early 1990s by an Australian telco, Telstra, in an attempt to circumvent local government interference with its internet access.
The government of then-prime minister Paul Keating initially denied any interference with Telstra’s service, but in 2004, after a series of court challenges, the Telstra Corporation Court ruled in favour of Telstra.
The telco appealed, and the case is currently before the Federal Court, where the government is trying to find a way to block access to the internet.
Under the Communications (Interception and Access) Act 1988, telecommunications companies are required to obtain an interception warrant from the Federal Government, which is the authority responsible for monitoring and intercepting communications.
In 2009, the Federal Commissioner for Communications, Kevin Andrews, announced the Communications Security Establishment (CSE) would be responsible for the interception of internet traffic.
It was an extraordinary step for the CSE, which at the time was just one of the country’s two major telecoms providers.
Under Andrews, the Cse’s powers expanded significantly, giving it the ability to intercept and store all internet traffic as well as intercept any traffic which it deemed to be “harmful” or “obstructive to the operation of the services”.
In May, the Communications Minister, Stephen Conroy, announced that the Cso would be empowered to intercept all “unreasonable” internet traffic, and any internet traffic that interfered with the service of the company that was providing it.
But the Australian Federal Police (AFP) accused the government of failing to properly consult the AFP, and of failing “to provide sufficient safeguards to ensure the Csea’s ability to conduct its activities is proportionate”.
The AFP claimed the Csse was not adequately consulted, and that its powers had been “extended beyond what is necessary for its effective performance”.
The AFP claimed in a submission to the court that it was now in breach of its obligations to the AFP in relation to “unreasonably invasive” intercepts of communications, including the Csuse’s ability “to intercept and retain communications that may contain serious, harmful or unlawful content” and its ability “as a provider of telecommunications services” to “intercept and store” data, including “content that might be used to facilitate the commission of criminal or unlawful offences”.
The Csso argued the AFP’s position was based on a “common-sense understanding of the role of the Csa in providing the telecommunications service that is currently provided by Telstra” and that “it would be inappropriate to assume that the AFP was prepared to take this view in light of a finding by the Court of Appeal”.
The court disagreed, and concluded that the government had acted within its powers under the Communications Act, and could therefore not be expected to have consulted the AFP about the “unnecessary and unreasonable” actions it was taking.
The AFP also alleged that the court had “not given sufficient weight to the need for the court to consider that the interception authority was subject to the protection of the Communications Acts”.
In a ruling last year, the High Court found that the police could only rely on a number of factors to justify their actions.
These included the Csupra’s ability and intent to conduct the interception and retention, the nature of the communication, and whether it was “reasonably likely” to contain content that would be “obscene, indecent, indecent or offensive”.
The High Court ruled that the law “clearly does not require that the [Csa] must have reasonable ground to believe that it will be able to conduct an interception that will meet the requirements of the Act”.
This means that it is entirely up to the Csi to determine whether they believe they have the “necessary and appropriate” powers to conduct a interception.
The High Ct’s decision was made before the introduction of Section 18C of the Telecommunications Act, which allows for interception to be authorised by a “court” which is “in a position to give directions”.
This new section has been introduced by the Turnbull government to replace the Telecommunications (Interceptions) Act 1984, which was repealed by the Howard government in 2008.
Under Section 18D of the law, “an interception authority shall be designated by a court or tribunal”, which means that a court can issue a warrant to the interception agency.
This requires a warrant signed by a judge, and has a maximum period of 10 days, but the maximum time for obtaining a warrant under Section 18E is 14 days.
If a court issues a warrant, it must give the interception service “a reasonable opportunity to be heard”, and the interception provider “must give evidence that the purpose of the warrant is to enable the court or agency to make a determination as to whether there is reasonable ground for issuing the warrant”.
Under Section 19(1)(b), the court can require the service provider to give the court “a written report setting out any information that is relevant to the purpose for which